SB1338 - 561R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 26, chapter 1, Arizona Revised Statutes, is amended by adding article 8, to read:

ARTICLE 8. MILITARY EQUIPMENT AND SURVEILLANCE EQUIPMENT

START_STATUTE26-271. Definitions

In this article, unless the context otherwise requires:

1. "Approving entity" means:

(a) For a municipality, the governing body of the municipality.

(b) For a county, the board of supervisors of the county.

2. "Discrimination" means any of the following:

(a) The disparate treatment of an individual because of either:

(i) That individual's real or perceived trait, characteristic or status as to which discrimination is prohibited under the Constitution of the United States or any other law of the United States, the Constitution of Arizona or any other law of this state, any city charter, if applicable, any municipal ordinance or resolution, if applicable, or any county ordinance or resolution, if applicable.

(ii) That individual's association with another individual as to whom discrimination is prohibited as described in item (i) of this subdivision.

(b) The disparate impact on an individual having a trait, characteristic or status as described in subdivision (a) of this paragraph.

3. "Disparate impact" means an adverse effect that is disproportionately experienced by an individual having any trait, characteristic or status as to which discrimination is prohibited under the Constitution of the United States or any other law of the United States, the Constitution of Arizona or any other law of this state, any city charter, if applicable, any municipal ordinance or resolution, if applicable, or any county ordinance or resolution, if applicable, than by a similarly situated individual not having such a trait, characteristic or status.

4. "Military equipment":

(a) Means tactical equipment that is regularly acquired, maintained or used by the United States military.

(b) Includes any of the following:

(i) Manned aircraft.

(ii) Unmanned aerial vehicles.

(iii) Wheeled or tracked armored vehicles, including mine-resistant and ambush-protected vehicles.

(iv) Tactical vehicles and vessels.

(v) Command and control vehicles.

(vi) Firearms and ammunition of .50 caliber or higher.

(vii) Firearms and ammunition under .50 caliber, other than service weapons, and ammunition therefor, issued to local police officers.

(viii) Bayonets.

(ix) Grenade launchers.

(x) Grenades, including stun and flash-bang grenades.

(xi) Explosives and pyrotechnics.

(xii) Silencers.

(xiii) Breaching apparatuses.

(xiv) Riot batons.

(xv) Helmets and shields.

(xvi) Long-range acoustic devices.

(xvii) Night vision devices.

(xviii) Camouflage uniforms.

5. "Surveillance data" means any electronic data that is collected, captured, recorded, retained, processed, intercepted, analyzed or shared by surveillance equipment.

6. "Surveillance equipment":

(a) Means:

(i) An electronic surveillance device or electronic surveillance hardware or software that is capable of collecting, capturing, recording, retaining, processing, intercepting, analyzing, monitoring or sharing audio, visual, digital, location, thermal, biometric or similar information or communications specifically associated with, or capable of being associated with, any specific individual or group.

(ii) Any system, device or vehicle that is equipped with an electronic surveillance device or electronic surveillance hardware or software.

(b) Includes:

(i) International mobile subscriber identity catchers and other cell site simulators.

(ii) Automatic license plate readers.

(iii) Electronic toll readers.

(iv) Closed-circuit television cameras.

(v) Biometric surveillance technology, including facial, voice, iris and gait-recognition software and databases.

(vi) Mobile DNA capture technology.

(vii) Gunshot detection and location hardware and services.

(viii) X-ray vans.

(ix) Video and audio monitoring or recording technology, such as surveillance cameras, wide-angle cameras and wearable body cameras.

(x) Surveillance-enabled or surveillance-capable lightbulbs or light fixtures.

(xi) Tools, including software and hardware, used to gain unauthorized access to a computer, computer service or computer network.

(xii) Social media monitoring software.

(xiii) Through-the-wall radar or similar imaging technology.

(xiv) Passive scanners of radio networks.

(xv) Long-range Bluetooth and other wireless-scanning devices.

(xvi) Radio frequency identification scanners.

(xvii) Software designed to integrate or analyze data from surveillance technology, including surveillance target tracking and predictive policing software.

(c) Does not include the following, unless they have been equipped with, or are modified to become or include, surveillance technology listed in subdivision (b) of this paragraph:

(i) Routine office hardware, such as a television, computer or printer, that is in widespread public use and will not be used for any surveillance or surveillance-related functions.

(ii) Parking Ticket Devices.

(iii) Manually operated and nonwearable handheld digital cameras, audio recorders and video recorders that are not designed to be used surreptitiously and whose functionality is limited to manually capturing and manually downloading video or audio recordings, or both.

(iv) Surveillance devices that cannot record or transmit audio or video or be remotely accessed, such as image-stabilizing binoculars.

(v) Municipal, county or state agency databases that do not and will not contain any data or other information collected, captured, recorded, retained, processed, intercepted or analyzed by surveillance technology.

(vi) Manually operated technological devices that are used primarily for internal municipal entity communications and that are not designed to surreptitiously collect surveillance data, such as radios and email systems.

7. "Viewpoint-based" means targeted at any community or group or its members because of the members' exercise of rights protected under the First Amendment of the United States Constitution. END_STATUTE

START_STATUTE26-272. Construction of article; use of military equipment and surveillance equipment; prohibition; collective bargaining agreements

A. The enumeration of military equipment and surveillance equipment in this article does not endorse or approve their use by any municipality, any county or this state.

B. Municipal, county and state employees or agents may not:

1. Use any military equipment or surveillance equipment except in a manner consistent with policies approved pursuant to the terms of this article.

2. Use military equipment or surveillance equipment in a manner that is discriminatory, is viewpoint-based or violates a city charter, if applicable, the Constitution of Arizona or the United States Constitution.

C. A municipal, county or state employee who violates this article or any implementing rule or regulation is subject to disciplinary proceedings and punishment.

D. For municipal, county or state employees who are represented under the terms of a collective bargaining agreement, this article prevails unless it conflicts with the collective bargaining agreement, any memorandum of agreement or understanding signed pursuant to the collective bargaining agreement or any recognized and established practice relative to the members of the bargaining unit. END_STATUTE

START_STATUTE26-273. Military equipment and surveillance equipment funding, acquisition or deployment; approval required; notice; hearing

A. Notwithstanding any other law, any municipality, any county and this state shall obtain approval from the relevant approving entity before engaging in any of the following:

1. Seeking monies for new military equipment or surveillance equipment, including applying for a grant or soliciting or accepting state or federal monies or in-kind or other donations or transfers.

2. Acquiring or borrowing new military equipment or surveillance equipment, whether or not that acquisition is made through the exchange of monies or for other or no consideration.

3. Deploying or using new or existing military equipment or surveillance equipment for a purpose or in a manner that is not previously approved by the approving entity pursuant to this article, including sharing surveillance data from the new or existing military equipment or surveillance equipment.

4. Soliciting proposals for or entering into an agreement with any other person or entity to acquire, share or otherwise use military equipment or surveillance equipment or its surveillance data.

B. Before approving any activity described in subsection A of this section, the relevant approving entity, after providing notice, shall hold a hearing at which the public may provide online, written and oral testimony. END_STATUTE

START_STATUTE26-274. Military equipment and surveillance equipment impact reports; use policies

A. As a part of the process of seeking the approval of an approving entity pursuant to section 26-273 to fund, acquire or deploy military equipment or surveillance equipment or to enter into an agreement concerning that funding, acquisition or deployment, a municipality, a county or this state shall submit to the approving entity and make publicly available a military equipment and surveillance equipment impact report and a military equipment and surveillance equipment use policy concerning the military equipment and surveillance equipment at issue.

B. A municipality, a county or this state may not use military equipment or surveillance equipment pursuant to this article without the relevant approving entity's express approval of the related military equipment and surveillance equipment impact report and military equipment and surveillance equipment use policy submitted pursuant to subsection A of this section.

C. The relevant approving entity may request that a municipality, a county or this state revise the military equipment and surveillance equipment impact report or military equipment and surveillance equipment use policy before the approving entity approves or rejects the report or policy.

D. Any military equipment and surveillance equipment impact report submitted pursuant to subsection A of this section shall be publicly released and is a legally enforceable and written report that must include, at a minimum, the following:

1. Information describing the military equipment or surveillance equipment and how it works, including product descriptions from manufacturers.

2. Information on the proposed purpose of the military equipment or surveillance equipment.

3. If the military equipment or surveillance equipment will not be uniformly deployed or targeted throughout the municipality, the county or this state, the factors that will be used to determine where the technology is deployed or targeted.

4. The fiscal impact of the military equipment or surveillance equipment.

5. An assessment identifying with specificity both:

(a) Any potential adverse impacts the military equipment or surveillance equipment, if deployed, might have on the public's welfare, civil liberties and civil rights.

(b) The specific affirmative measures that will be implemented to safeguard the public from the potential adverse impacts identified pursuant to subdivision (a) of this paragraph.

E. Any military equipment and surveillance equipment use policy submitted pursuant to subsection A of this section shall be publicly released and is a legally enforceable written policy that governs the municipality's, the county's or this state's use of the military equipment or surveillance equipment and that, at a minimum, must include and address the following:

1. The specific purpose the military equipment or surveillance equipment is intended to advance.

2. The specific capabilities, deployments and uses of the military equipment or surveillance equipment for which authorization is being sought.

3. The legal and procedural rules that will govern each authorized use.

4. The potential deployments and uses of the military equipment or surveillance equipment that will be expressly prohibited.

5. If applicable, how and under what circumstances surveillance data that is collected, captured, recorded or intercepted by the surveillance equipment will be analyzed and reviewed.

6. The course of training that must be completed before any municipal, county or state employee is allowed to use the specific type of military equipment or surveillance equipment so as to ensure the protection of the public's safety, civil rights and civil liberties and adherence to the relevant military equipment and surveillance equipment use policy.

7. The anticipated annual cost of the training described in paragraph 6 of this subsection.

8. If applicable, the types of surveillance data that the surveillance equipment will collect, capture, record, intercept or retain.

9. If applicable, the surveillance data that may be inadvertently collected during the authorized uses of the surveillance equipment and the measures that will be taken to minimize inadvertently collecting data.

10. If applicable, how inadvertently collected surveillance data will be expeditiously identified and deleted.

11. If applicable, the safeguards that will be used to protect surveillance data from unauthorized access, including encryption and access control mechanisms.

12. If applicable, insofar as the privacy of the public can be severely compromised by the long-term storage of mass surveillance data, the rules and procedures that will govern the retention of surveillance data, including those governing:

(a) The limited time period, if any, surveillance data will be retained. Such information shall include a statement explaining why the designated retention period is no greater than that which is absolutely necessary to achieve the specific purposes enumerated in the military equipment and surveillance equipment use policy.

(b) The specific conditions that must be met to retain surveillance data beyond the retention period stated in subdivision (a) of this paragraph.

(c) The process by which surveillance data will be regularly deleted after the retention period stated in subdivision (a) of this paragraph elapses and the auditing procedures that will be implemented to ensure that data is not improperly retained.

13. If a municipality, a county or this state is seeking authorization to share access to surveillance data with any other governmental agency, department, bureau, division or unit, a detailed description of the following:

(a) The manner in which the municipality, the county or this state will require that the collection, retention and storage of surveillance data be conducted in compliance with the principles set forth in 28 Code of Federal Regulations Part 23.

(b) Which governmental agencies, departments, bureaus, divisions or units will be approved for surveillance data sharing.

(d) The manner in which the municipality, the county or this state will ensure that any entity receiving access to the surveillance data complies with the applicable military equipment and surveillance equipment use policy and does not further disclose the surveillance data to unauthorized persons and entities.

(e) The processes that will be used to seek approval of future surveillance data sharing agreements from the municipality, the county or this state and the approving entity.

14. If applicable, the legal standard that government entities or third parties seeking or demanding access to surveillance data must meet.

15. The mechanisms that will be implemented to ensure that the military equipment and surveillance equipment use policy is followed, including the independent persons or entities that will be given oversight authority and the legally enforceable sanctions that will be put in place for violations of the use policy.

16. The procedures by which members of the public can register complaints or concerns or submit questions about the deployment or use of a specific type of military equipment or surveillance equipment and how the municipality, the county or this state will ensure that each question and complaint is responded to in a timely manner. END_STATUTE

START_STATUTE26-275. Lead municipality or county; identification

If more than one municipality or county will have access to the military equipment or surveillance equipment or its surveillance data, a lead municipality or county shall be identified. The lead municipality or county is responsible for maintaining the military equipment or surveillance equipment and ensuring compliance with all related laws, regulations and protocols. END_STATUTE

START_STATUTE26-276. Standard for approval; public participation; posting

A. An approving entity may approve a request to fund, acquire or use military equipment or surveillance equipment only if the approving entity determines that all of the following are true:

1. The benefits of the military equipment or surveillance equipment outweigh the costs of the military equipment or surveillance equipment.

2. The proposal will safeguard the public's welfare, civil liberties and civil rights.

3. The uses and deployments of the military equipment or surveillance equipment will not be based on discriminatory or viewpoint-based factors or have a disparate impact on any community or group.

B. To promote public participation in a determination pursuant to subsection A of this section, the approving entity shall make all approved military equipment and surveillance equipment impact reports and military equipment and surveillance equipment use policies available to the public by posting the reports and policies on the municipality's, the county's or this state's website. The impact reports and use policies shall remain posted on the website for as long as the related military equipment or surveillance equipment is available for deployment.

C. If the risk of potential adverse impacts on the public's welfare, civil rights or civil liberties has been identified in the military equipment and surveillance equipment impact report pursuant to section 26-274, the approving entity's approval to fund, acquire or deploy any military equipment or surveillance equipment may not be interpreted as an acquiescence to such impacts but rather as an acknowledgement that a risk of such impacts exists and must be proactively avoided. END_STATUTE

START_STATUTE26-277. Annual military equipment and surveillance equipment report; community engagement meetings

A. If a municipality, a county or this state obtains approval for funding, acquiring or deploying any military equipment or surveillance equipment, the municipality, the county or this state shall submit to the approving entity and make available on its public website an annual military equipment and surveillance equipment report for each type of specific military-grade law enforcement equipment acquired or deployed by the municipality, the county or this state within twelve months after receiving approval and annually thereafter on or before March 15. The annual military equipment and surveillance equipment report shall include at least the following information for the previous calendar year for each type of military equipment or surveillance equipment acquired or deployed:

1. A summary of how the military equipment or surveillance equipment was used.

2. Whether and how often collected surveillance data was shared with any external persons or entities, the name of any recipient person or entity, the types of data disclosed, under what legal standards the information was disclosed and the justification for the disclosures.

3. If applicable, a breakdown of where the military equipment or surveillance equipment was deployed geographically, by individual census tract as defined in the relevant year by the United States census Bureau. For each census tract, the municipality, the county or this state shall report the number of individual days the military equipment or surveillance equipment was deployed and the percentage of those daily reported deployments that were subject to a warrant or a nonwarrant form of court authorization.

4. If applicable, and with the greatest precision that is reasonably practicable, the amount of time the surveillance equipment was used to monitor internet activity, the number of people affected and what percentage of the reported monitoring was subject to a warrant or a nonwarrant form of court authorization.

5. A summary of complaints or concerns that were received about the military equipment or surveillance equipment.

6. The results of any internal audits, any information about violations of the military equipment and surveillance equipment use policy and any actions taken in response to those violations.

7. An analysis of any discrimination, disparate impact or other adverse impact the use of the military equipment or surveillance equipment may have had on the public's safety, civil rights and civil liberties, including on those rights and liberties guaranteed by the First, Fourth and Fourteenth Amendments to the United States Constitution.

8. The total annual costs for the military equipment or surveillance equipment, including operating personnel, maintenance and other ongoing costs, and the source of funding for the military equipment or surveillance equipment in the coming year.

B. Within thirty days after submitting and publicly releasing an annual military equipment and surveillance equipment report pursuant to subsection A of this section, the municipality, the county or this state shall hold one or more well-publicized and conveniently located community engagement meetings at which the general public is invited to discuss and ask questions regarding the annual military equipment and surveillance equipment report and the municipality's, the county's or this state's acquisition or deployment of the military equipment and surveillance equipment.

C. Based on information provided in the annual military equipment and surveillance equipment report, the approving entity shall determine whether each type of military equipment or surveillance equipment identified meets the standard for approval set forth in section 26-276. If the standard for approval is not met, the approving entity shall direct that the use of the military equipment or surveillance equipment be discontinued or shall require modifications to the military equipment and surveillance equipment use policy that will resolve the observed failures. END_STATUTE

START_STATUTE26-278. Annual public report

Not later than April 15 each year, each approving entity or the approving entity's designee shall release a public report, in print and on its public website, containing the following information for the preceding calendar year:

1. The number of requests for approval submitted to the approving entity pursuant to this article for funding, acquiring or newly deploying military equipment and surveillance equipment.

2. The number of times the approving entity approved requests submitted under this article for funding, acquiring or newly deploying military equipment and surveillance equipment.

3. The number of times the approving entity rejected requests submitted under this article for funding, acquiring or newly deploying military equipment and surveillance equipment.

4. The number of times the approving entity requested that modifications be made to military equipment and surveillance equipment impact reports and military equipment and surveillance equipment use policies before it approved funding, acquiring or newly deploying military equipment and surveillance equipment.

5. All annual military equipment and surveillance equipment reports submitted pursuant to section 26-277. Printed copies of the public report may contain pinpoint references to online locations where the annual military equipment and surveillance equipment reports are located instead of reprinting the full reports. END_STATUTE

START_STATUTE26-279. Community advisory committees on military equipment and surveillance equipment; equity impact assessments and policy guidance

A. Within three months after the effective date of this article, each approving entity shall appoint a community advisory committee on military equipment and surveillance equipment to provide the municipality, the county or this state with broad principles to help guide decisions about whether and how military equipment and surveillance equipment should be acquired and deployed by the municipality, the county or this state.

B. The membership of each community advisory committee on military EQUIPMENT and surveillance equipment shall reflect the diversity of the municipality's, the county's or this state's residents, and special efforts shall be made to ensure that communities that have historically been disproportionately subjected to targeting by military equipment and surveillance equipment are well represented.

C. The members of each community advisory committee on military equipment and surveillance equipment shall annually elect a chairperson and vice chairperson.

D. Not later than September 15 of each year, each community advisory committee on military equipment and surveillance equipment shall produce and submit to the approving entity a military equipment and surveillance equipment community equity impact assessment and policy guidance, which shall address, at a minimum, the following:

1. The communities and groups in the municipality, the county or this state, if any, that are disproportionately impacted by the deployment of military equipment and surveillance equipment, disparate impacts that were perceived or experienced and the resulting adverse impacts on each community's or group's safety, civil rights and civil liberties.

2. With respect to each perceived or experienced disparate impact identified in paragraph 1 of this subsection, the remedial adjustments to laws and policies, including prior approvals under section 26-273, subsection A that should be made to achieve a more just and equitable outcome in the future.

3. With respect to each remedial adjustment identified in paragraph 2 of this subsection, the additional funding, implementation strategies and accountability mechanisms needed to achieve the adjustment.

4. The new approaches and considerations that the approving entity should bring to future reviews of applications submitted pursuant to section 26-273 to address the findings made pursuant to paragraphs 1, 2 and 3 of this subsection. END_STATUTE

START_STATUTE26-280. Remedies; violation; classification

A. Any violation of this article, including funding, acquiring or deploying military equipment or surveillance equipment that has not been approved pursuant to this article or using military equipment or surveillance equipment in a manner or for a purpose that has not been approved pursuant to this article, constitutes an injury, and any person may institute proceedings for injunctive relief, declaratory relief, a writ of mandate or evidence suppression in any court of competent jurisdiction to enforce this article.

B. A court shall award costs and reasonable attorney fees to a plaintiff who is the prevailing party in an action brought to enforce this article.

C. Any person who knowingly violates this article is guilty of a class 1 misdemeanor. END_STATUTE

START_STATUTE26-281. Whistleblower protections

A municipality, a county or this state, or anyone acting on behalf of a municipality, a county or this state, may not retaliate against any employee or applicant for employment, including discrimination with respect to compensation, terms of employment, conditions of employment, access to information, due process rights, privileges of employment or civil or criminal liability, because the employee or applicant was perceived to assist, was about to assist or assisted in any lawful disclosure of information concerning funding, acquiring or deploying military equipment or surveillance equipment or sharing surveillance data with any relevant municipal, county or state agency, any law enforcement, prosecutorial or investigatory office or a member of the approving entity based on a good faith belief that the disclosure evidenced a violation of this article. END_STATUTE

START_STATUTE26-282. Conflicting contractual agreements prohibited; certain public-private contracts prohibited

A. A municipality, a county or this state may not enter into any contract or other agreement that conflicts with this article. any conflicting provisions in such a contract or agreement, including nondisclosure agreements, are void and legally unenforceable. Conflicting provisions in a contract or agreement signed before the effective date of this article are void and legally unenforceable to the extent allowed by law.

B. A municipality, a county or this state may not enter into any contract or other agreement that facilitates receiving military equipment or surveillance equipment from or providing surveillance data to any nongovernmental entity in exchange for any monetary or other form of consideration from any source, including assessing any additional fees, interest or surcharges on unpaid fines or debts. Any contract or agreement signed before the effective date of this article that violates this section shall be terminated as soon as is legally permissible. END_STATUTE

Sec. 2. Review of preexisting uses

A. If any municipality, any county or this state seeks to continue the use of any military equipment or surveillance equipment that was acquired before the effective date of this act, or the sharing of surveillance data therefrom, the municipality, the county or this state shall commence the approval process in accordance with section 26-273, Arizona Revised Statutes, as added by this act, not later than one hundred twenty days after the effective date of this act.

B. If the approving entity has not approved the continuing deployment of the military equipment or surveillance equipment within one hundred eighty days after the municipality, the county or this state submits to the approving entity the military equipment and surveillance equipment impact report and military equipment and surveillance equipment use policy pursuant to section 26-274, Arizona Revised Statutes, as added by this act, the municipality, the county or this state shall cease its use of the military equipment or surveillance equipment and the sharing of any surveillance data therefrom until approval is obtained in accordance with this act.