Bill Summary – FastDemocracy

Enrolled Copy                                                                       S.B. 250
                        PUBLIC SURVEILLANCE AMENDMENTS
                                      2023 GENERAL SESSION
                                           STATE OF UTAH
                                 Chief Sponsor: Daniel McCay
                                 House Sponsor: Ryan D. Wilcox
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 LONG TITLE
 General Description:
        This bill modifies provisions related to government surveillance.
 Highlighted Provisions:
        This bill:
        < defines terms;
        < allows a law enforcement agency to use license plate reading technology gathered
 by a private entity in certain circumstances;
        < allows the Department of Transportation to issue a permit for the use of license
 plate reading technology on a state highway in certain circumstances;
        < requires a law enforcement agency participating in a license plate reading
 technology program to publicly post policies related to license plate reading
 technology and special use permits the law enforcement agency has received;
        < defines parameters for the collection and retention of information for investigative
 searches and for audit purposes gathered through license plate reading technology
 by a law enforcement agency; and
        < makes technical changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
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 AMENDS:
        41-6a-2002, as last amended by Laws of Utah 2020, Chapter 365
        41-6a-2003, as last amended by Laws of Utah 2022, Chapter 82
        41-6a-2004, as last amended by Laws of Utah 2018, Chapter 269
        41-6a-2005, as last amended by Laws of Utah 2014, Chapter 276
        41-6a-2006, as enacted by Laws of Utah 2013, Chapter 447
        72-1-212, as enacted by Laws of Utah 2015, Chapter 267
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 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 41-6a-2002 is amended to read:
        41-6a-2002. Definitions.
        As used in this [section] chapter:
        (1) "Automatic license plate reader system" means a system of one or more mobile or
 fixed automated high-speed cameras used in combination with computer algorithms to convert
 an image of a license plate into computer-readable data.
        (2) "Captured plate data" means the global positioning system coordinates, date and
 time, photograph, license plate number, and any other data captured by or derived from an
 automatic license plate reader system.
        (3) (a) "Governmental entity" means:
        (i) executive department agencies of the state;
        (ii) the offices of the governor, the lieutenant governor, the state auditor, the attorney
 general, and the state treasurer;
        (iii) the Board of Pardons and Parole;
        (iv) the Board of Examiners;
        (v) the National Guard;
        (vi) the Career Service Review Office;
        (vii) the State Board of Education;
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       Enrolled Copy                                                                            S.B. 250
        (viii) the Utah Board of Higher Education;
        (ix) the State Archives;
        (x) the Office of the Legislative Auditor General;
        (xi) the Office of the Legislative Fiscal Analyst;
        (xii) the Office of Legislative Research and General Counsel;
        (xiii) the Legislature;
        (xiv) legislative committees, except any political party, group, caucus, or rules or
 sifting committee of the Legislature;
        (xv) courts, the Judicial Council, the Administrative Office of the Courts, and similar
 administrative units in the judicial branch;
        (xvi) any state-funded institution of higher education or public education; [or]
        (xvii) any political subdivision of the state[.]; or
        (xviii) a law enforcement agency.
        (b) "Governmental entity" includes:
        (i) every office, agency, board, bureau, committee, department, advisory board, or
 commission of an entity listed in Subsections (3)(a)(i) through [(xvii)] (xviii) that is funded or
 established by the government to carry out the public's business; or
        (ii) a person acting as an agent of a governmental entity or acting on behalf of a
 governmental entity.
        (4) "Nongovernmental entity" means a person that is not a governmental entity.
        [(4)] (5) "Secured area" means an area, enclosed by clear boundaries, to which access
 is limited and not open to the public and entry is only obtainable through specific
 access-control points.
        Section 2. Section 41-6a-2003 is amended to read:
        41-6a-2003. Automatic license plate reader systems -- Restrictions.
        (1) Except as provided in Subsection (2), a governmental entity may not use an
 automatic license plate reader system.
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         (2) [An] Subject to Subsection (3), an automatic license plate reader system may be
 used:
         (a) by a law enforcement agency: [for the purpose of protecting public safety,
 conducting criminal investigations, or ensuring compliance with local, state, and federal laws;]
         (i) as part of an active criminal investigation;
         (ii) to apprehend an individual with an outstanding warrant;
         (iii) to locate a missing or endangered person; or
         (iv) to locate a stolen vehicle;
         (b) by a governmental parking enforcement entity for the purpose of enforcing state
 and local parking laws;
         (c) by a parking enforcement entity for regulating the use of a parking facility;
         (d) for the purpose of controlling access to a secured area;
         (e) for the purpose of collecting an electronic toll;
         (f) for the purpose of enforcing motor carrier laws;
         (g) by a public transit district for the purpose of assessing parking needs and
 conducting a travel pattern analysis;
         (h) by an institution of higher education within the state system of higher education as
 described in Section 53B-1-102:
         (i) for a purpose described in Subsections (2)(a) through (d); or
         (ii) if the data collected is anonymized, for research and educational purposes; [or]
         (i) by the Utah Inland Port Authority, created in Section 11-58-201, or by a contractor
 of the Utah Inland Port Authority with the approval of the board of the Utah Inland Port
 Authority, if:
         (i) the automatic license plate reader system is used only within a project area, as
 defined in Section 11-58-102, of the Utah Inland Port Authority;
         (ii) the purpose of using the automatic license plate reader system is to improve supply
 chain efficiency or the efficiency of the movement of goods by analyzing and researching data
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        Enrolled Copy                                                                             S.B. 250
 related to commercial vehicle traffic; and
           (iii) specific license plate information is anonymized[.]; or
           (j) by an international airport owned by a governmental entity for the purpose of
 promoting efficient regulation and implementation of traffic control and direction, parking,
 security, and other similar operational objectives on the airport campus.
           (3) A law enforcement agency may not use an automatic license plate reader system
 unless:
           (a) the law enforcement agency has a written policy regarding the use, management,
 and auditing of the automatic license plate reader system;
           (b) for any stationary device installed with the purpose of capturing license plate data
 of vehicles traveling on a state highway, the law enforcement agency obtains a special use
 permit as described in Section 72-1-212 from the Department of Transportation before
 installing the device; and
           (c) the policy under Subsection (3)(a) and any special use permits granted in
 accordance with Subsection (3)(b) are:
           (i) posted and publicly available on the appropriate city, county, or state website; or
           (ii) posted on the Utah Public Notice Website created in Section 63A-16-601 if the law
 enforcement agency does not have access to a website under Subsection (3)(c)(i).
           Section 3. Section 41-6a-2004 is amended to read:
           41-6a-2004. Captured plate data -- Preservation and disclosure.
           (1) Captured plate data obtained for the purposes described in Section 41-6a-2003:
           (a) in accordance with Section 63G-2-305, is a protected record under Title 63G,
 Chapter 2, Government Records Access and Management Act, if the captured plate data is
 maintained by a governmental entity;
           (b) may not be used or shared for any purpose other than the purposes described in
 Section 41-6a-2003;
           (c) except as provided in Subsection (3), may not be preserved for more than nine
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 months by a governmental entity except pursuant to:
          (i) a preservation request under Section 41-6a-2005;
          (ii) a disclosure order under Subsection 41-6a-2005(2); or
          (iii) a warrant issued under the Utah Rules of Criminal Procedure or an equivalent
 federal warrant; and
          (d) may only be disclosed:
          (i) in accordance with the disclosure requirements for a protected record under Section
 63G-2-202;
          (ii) pursuant to a disclosure order under Subsection 41-6a-2005(2); or
          (iii) pursuant to a warrant issued under the Utah Rules of Criminal Procedure or an
 equivalent federal warrant.
          (2) (a) A governmental entity that is authorized to use an automatic license plate reader
 system under this part may not sell captured plate data for any purpose.
          (b) A governmental entity that is authorized to use an automatic license plate reader
 system under this part may not share or use captured plate [date] data for a purpose not
 authorized under Subsection 41-6a-2003(2).
          (c) Notwithstanding the provisions of this section, a governmental entity may preserve
 and disclose aggregate captured plate data for planning and statistical purposes if the
 information identifying a specific license plate is not preserved or disclosed.
          (3) Plate data collected in accordance with Section 72-6-118 may be preserved so long
 as necessary to collect the payment of a toll or penalty imposed in accordance with Section
 72-6-118 and the nine-month preservation limitation described in Subsection (1)(c) shall not
 apply.
          (4) (a) Except as provided in Subsections (1)(c)(i) through (1)(c)(iii), a governmental
 entity shall destroy as soon as reasonably possible, in an unrecoverable manner, plate data
 obtained pursuant to this chapter that is not specifically necessary to achieve the authorized
 objectives under Subsection 41-6a-2003(2).
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        Enrolled Copy                                                                             S.B. 250
        (b) Subsection (4)(a) applies to data a governmental entity obtains:
        (i) from a nongovernmental entity pursuant to a warrant; or
        (ii) from an automatic license plate reader system owned or operated by a
 governmental entity.
        Section 4. Section 41-6a-2005 is amended to read:
        41-6a-2005. Preservation request.
        (1) A person or governmental entity using an automatic license plate reader system
 shall take all steps necessary to preserve captured plate data in its possession for 14 days after
 the date the data is captured pending the issuance of a court order requiring the disclosure of
 the captured plate data if a governmental entity or defendant in a criminal case requesting the
 captured plate data submits a written statement to the person or governmental entity using an
 automatic license plate reader system:
        (a) requesting the person or governmental entity to preserve the captured plate data;
        (b) identifying:
        (i) the camera or cameras for which captured plate data shall be preserved;
        (ii) the license plate for which captured plate data shall be preserved; or
        (iii) the dates and time frames for which captured plate data shall be preserved; and
        (c) notifying the person or governmental entity maintaining the captured plate data that
 the governmental entity or defendant in a criminal case is applying for a court order for
 disclosure of the captured plate data.
        (2) (a) A governmental entity or defendant in a criminal case may apply for a court
 order for the disclosure of captured plate data possessed by a governmental entity.
        (b) A court that is a court of competent jurisdiction shall issue a court order requiring
 the disclosure of captured plate data if the governmental entity or defendant in a criminal case
 offers specific and articulable facts showing that there are reasonable grounds to believe that
 the captured plate data is relevant and material to an ongoing criminal or missing person
 investigation.
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         (3) Captured plate data that is the subject of an application for a disclosure order under
 Subsection (2) may be destroyed at the later of:
         (a) the date that an application for an order under Subsection (2) is denied and any
 appeal exhausted;
         (b) the end of 14 days, if the person or governmental entity does not otherwise preserve
 the captured plate data; or
         (c) the end of the period described in Subsection 41-6a-2004(1)(c).
         (4) Notwithstanding Subsection (2), a governmental entity may enter into a
 memorandum of understanding with another governmental entity to share access to an
 automatic license plate reader system or captured plate data otherwise authorized by this part.
         [(4)] (5) A governmental entity may obtain, receive, or use [privately held] captured
 plate data from a nongovernmental entity only:
         (a) (i) pursuant to a warrant issued using the procedures described in the Utah Rules of
 Criminal Procedure or an equivalent federal warrant; or
         (ii) using the procedure described in Subsection (2); and
         [(b) if the private automatic license plate reader system retains captured plate data for
 30 days or fewer.]
         (b) for the purposes authorized in Subsection 41-6a-2003(2).
         (6) (a) A law enforcement agency shall preserve a record of:
         (i) the number of times a search of captured license plate data is conducted by the
 agency or the agency's employees or agents; and
         (ii) the crime type and incident number associated with each search of captured license
 plate data.
         (b) A law enforcement agency shall preserve a record identified in Subsection (6)(a)
 for at least five years.
         Section 5. Section 41-6a-2006 is amended to read:
         41-6a-2006. Penalties.
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        Enrolled Copy                                                                              S.B. 250
           A person [who violates a provision under this part] who knowingly or intentionally
 uses, obtains, or discloses captured license plate data in violation of this part is guilty of a class
 B misdemeanor.
           Section 6. Section 72-1-212 is amended to read:
           72-1-212. Special use permitting -- Rulemaking.
           [(1) For purposes of this section, "special use permit" means a permit issued for a
 special use or a special event that takes place on a highway.]
           (1) As used in this section:
           (a) "Law enforcement agency" means the same as that term is defined in Section
 53-3-102.
           (b) "Special use permit" means a permit issued:
           (i) for a special use or a special event that takes place on a highway; or
           (ii) to a law enforcement agency to install an automatic license plate reader on a state
 highway for the purpose of capturing license plate data of vehicles traveling on a state highway,
 regardless of whether the device is installed on property owned by the department or the law
 enforcement agency.
           (2) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and
 in consultation with representatives of the Utah League of Cities and Towns and the Utah
 Association of Counties, the department shall make rules that are not inconsistent with this
 chapter or the constitution and laws of this state or of the United States governing the issuance
 of a special use permit to maintain public safety and serve the needs of the traveling public.
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