This post was authored by Alysha Stein-Manes and Daniel Seitz
Remote surveillance is an area of expanding interest for law enforcement agencies. Police departments continue to equip their sworn officers with body-mounted video cameras (“body cams”), and, in California, the Legislature has begun to regulate discoverability of body cam footage. Agencies in California and across the country have also begun to deploy unmanned aerial systems (“UASs”), drones, and robots to assist in policing and surveillance efforts. For example, one California agency recently began deploying a robot to survey public spaces when peace officers are not present.
Many UASs, drones, and robots can record audio and video and then wirelessly transmit the data to storage facilities. Some agencies maintain their own data storage, while others contract with third parties. In either case, these emerging surveillance methods and new sources of data represent a potential impact on agency relations—both with its employees and with the public.
Possible Effects on Bargaining
The purchase and use of remote surveillance equipment may represent a significant agency investment and may pose issues that affect the terms and conditions of employment for represented employees. For example, equipment may require a onetime purchase or recurring subscription payments; portions of an agency’s budget that could have gone to hiring new officers may instead finance the remote surveillance equipment. The equipment will need maintenance and repair. Additionally, such equipment may require a trained operator or team of operators. The agency will likely need to assign personnel to review any captured audio and video data. If an agency uses such technology to patrol public spaces, it may raise questions of whether the equipment has replaced a bargained-for position or has impacted the availability of officer overtime hours.
If employers use remote surveillance equipment, they should address whether such usage is a mandatory subject of bargaining or whether decisions relating to their usage constitute a management decision. California Government Code section 3505 requires employers to “meet and confer in good faith regarding wages, hours, and other terms and conditions of employment” with recognized employee organizations. If remote surveillance equipment usage leads to a change in working hours, availability of overtime, changes in job duties, additional certification requirements, or other terms and conditions of employment, agencies should speak with their legal counsel about potential impacts on bargaining. Agencies considering such equipment might also benefit from a more informal meet-and-consult or meet-and-discuss with their employee associations. This would give the associations a chance to identify potential impacts and raise them before the employer-employee relationship suffers.
Susceptibility to Records Requests
Agencies should also recognize that audio and video data recorded by remote surveillance equipment, such as drones and robots, may be subject to disclosure under the California Public Records Act (CPRA).
With some exceptions, the CPRA requires public agencies to allow inspection of data (including audio and video recordings) that relates to government process or government business. Currently, California law does not directly address agency drone or “robot” footage or audio recordings. However, the California legislature has recently passed several bills governing oversight of law enforcement agencies that suggest data generated from such equipment will be subject to similar means of disclosure.
Specifically, as of January 2019, SB 1421 requires that agencies produce in response to a CPRA request a wide variety of records relating to officer-involved shootings, officer uses of force resulting in serious injury or death, certain instances of officer dishonesty, and instances of officer sexual assault against civilians. Additionally, beginning on January 1, 2020, SB 978 will require law enforcement agencies to post “all current standards, policies, practices, operating procedures, and education and training materials” on their websites, if the information would otherwise be subject to a CPRA request. A public agency considering whether to use drones, robots, or other remote surveillance equipment should work with legal counsel to identify what information may become discoverable through records requests under California law.
Privacy Considerations and Public Concerns
Remote surveillance equipment may present significant privacy concerns. The U.S. Constitution and California law protect communications where there is a reasonable expectation of privacy. This reasonable expectation is generally measured in terms of human ability (and limitations)—not machine specifications. In Florida v. Riley (1989) 488 U.S. 445, 449-450, the Supreme Court of the United States held that “the Fourth Amendment simply does not require the police traveling in the public airways at an altitude of 400 feet to obtain a warrant in order to observe what is visible to the naked eye.” In Kyllo v. US (2001) 533 U.S. 27, 40 the Supreme Court held that police use of a thermal imaging device that was not in “general public use” without a warrant constituted a search under the Fourth Amendment and is presumptively unreasonable, even if it does not physically invade a private space. While there is no current U.S. Supreme Court precedent addressing drone usage in similar contexts, these cases and others leave open the possibility that the U.S. Supreme Court could limit the usage of such remote surveillance equipment on Fourth Amendment grounds.
While the regulation of drones and similar devices remains an open question at the federal level, in California, Section 1708.8 of the Civil Code provides that a person is liable for “constructive invasion of privacy” when the person “attempts to capture” a visual image, sound recording or other “physical impression” while the person engages in a private, personal or familiar activity,” when using a device such as a drone. The law further provides that any person who directs, solicits, actually induces, or causes another person to violate this law “regardless of whether there is an employer-employee relationship” is liable for invasion of privacy. Section 632 of the California Penal Code requires all parties to consent to the recording of an otherwise confidential communication and defines “confidential communication” to include “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering.” Exceptions would apply where agencies obtain valid warrants.
As agencies continue to consider whether they will employ the use of remote surveillance equipment to assist in their duties, it will be important for agencies to understand the capabilities of their remote surveillance equipment, understand the law regarding public employee bargaining rights, transparency, and privacy, and define the roles of such devices carefully.