BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2479
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          Date of Hearing:  May 4, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                     AB 2479 (Bass) - As Amended: April 28, 2010

                             As Proposed to be Amended 
           
          SUBJECT  :  Stalking: Surveillance

           KEY ISSUES  : 

          1)Should the definition of "stalking" under California's civil  
            anti-stalking statute be expanded to include placing a person  
            "under surveillance?"

          2)Should California's civil "invasion of privacy" statute be  
            amended to include "false imprisonment" committed with the  
            intent to capture a person's voice or visual image? 

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal. 

                                      SYNOPSIS

          Existing law makes a person liable for the civil tort of  
          "stalking" if the person engages in a pattern of conduct that is  
          intended to follow, alarm, or harass another person.  In order  
          to prevail, a plaintiff that brings an action under the stalking  
          statute must prove all the following elements: (1) that the  
          defendant engaged in a pattern of conduct that constituted  
          stalking; (2) that as a result of that conduct the plaintiff  
          reasonably feared for his or her safety, or for the safety of an  
          immediate family member; and (3) that the defendant made a  
          credible threat with the intent to place the plaintiff in such  
          fear.  In addition, existing law requires that the plaintiff  
          must have, on at least one occasion, clearly demanded that the  
          defendant cease the conduct and the defendant nevertheless  
          persisted.  This bill would expand the definition of "stalking"  
          to include conduct that is intended to "place [a person] under  
          surveillance," which is defined as remaining outside of another  
          person's home, school, or workplace with no apparent lawful  
          purpose.  This bill also seeks to amend the state's civil  
          "invasion of privacy" statute by including "false imprisonment"  
          that is committed in order to obtain a visual image or other  








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          impression of the person.  According to the author, this bill  
          seeks to abate aggressive behavior by paparazzi that go to any  
          length to capture the sounds and images of celebrities and their  
          families.  The author contends that the existing anti-stalking  
          and invasion of privacy statutes do not clearly cover the kinds  
          of "surveillance" in which paparazzi often engage.  The Motion  
          Picture Association of America opposes this bill on the grounds  
          that it is unnecessary and will interfere with numerous  
          legitimate surveillance activities related to news gathering,  
          piracy investigation, and certain entertainment programs.  The  
          Committee has suggested amendments that the author has agreed to  
          accept;  the bill summary below reflects the bill as proposed to  
          be amended. 
           
           SUMMARY  :  Expands the existing statute that makes a person  
          liable in tort for stalking to include conduct that places a  
          person under "surveillance" and amends the existing invasion of  
          privacy statute to include "false imprisonment," as specified.   
          Specifically,  this bill  :  

          1)Expands liability for the tort of stalking by adding "place  
            under surveillance" to the list of intentional patterns of  
            conduct that constitute "stalking."  Provides, consistent with  
            what is required under the existing statute, that such  
            surveillance would only create liability if the plaintiff  
            could also prove that the conduct (a) placed the plaintiff in  
            reasonable fear for his or her safety, or the safety of an  
            immediate family member; (b) was done with the intent of  
            placing the plaintiff in such fear; and (c) that the plaintiff  
            clearly demanded that the defendant cease the conduct and the  
            defendant persisted in the conduct. 

          2)Defines "place under surveillance" to mean remaining present  
            outside the plaintiff's school, school, place of employment,  
            vehicle, residence, other than the residence of the defendant,  
            or other place occupied by the plaintiff.  Provides however  
            that "place under surveillance" does not include various  
            actions by law enforcement and private investigators, as  
            specified. 

          3)Provides that a person who commits "false imprisonment" with  
            the intent to capture any type of visual image, sound  
            recording, or other physical impression of a plaintiff is  
            subject to liability under the civil invasion of privacy  
            statute and, as such, liable for up to three times the amount  








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            of any general or special damages that are proximately caused  
            by the conduct. 

           EXISTING LAW  : 

          1)Makes a person liable for the tort of stalking when the  
            plaintiff proves all of the following elements of the tort:  
            (a) that the defendant engaged in a pattern of conduct with  
            the intent to follow, alarm, or harass the plaintiff; (b)  
            that, as a result of that conduct, the plaintiff reasonably  
            feared for his or her safety, or the safety of an immediate  
            family member; (c) that the defendant made a credible threat  
            with the intent of placing the plaintiff in such fear, OR the  
            defendant's conduct was in violation of a restraining order  
            prohibiting the conduct.  Provides further the plaintiff must  
            have made a clear demand that the defendant cease the conduct  
            and the defendant nonetheless persisted.  (Civil Code Section  
            1708.7.) 

          2)Defines "credible threat," for purposes of the above, to mean  
            a verbal or written threat, including an electronic  
            communication, or threat implied by a pattern of conduct, or a  
            combination thereof, made with the intent and apparent ability  
            to carry out the threat so as to cause the person who is the  
            target of the threat to reasonably fear for his or her safety  
            or the safety of his or her immediate family.  (Civil Code  
            Section 1708.7 (b)(2).) 

          3)Makes a person liable for "physical invasion of privacy" for  
            knowingly entering onto the land of another person or  
            otherwise committing a trespass in order to physically invade  
            the privacy of another person with the intent to capture any  
            type of visual image, sound recording, or other physical  
            impression of that person engaging in a personal or familial  
            activity, and the physical invasion occurs in a manner that is  
            offensive to a reasonable person.  (Civil Code Section 1708.8  
            (a).) 

          4)Makes a person liable for "constructive invasion of privacy"  
            for attempting to capture, in a manner highly offensive to a  
            reasonable person, any type of visual image, sound recording,  
            or other physical impression of another person engaging in a  
            personal or familial activity under circumstances in which the  
            plaintiff had a reasonable expectation of privacy, through the  
            use of a visual or auditory enhancing device, regardless of  








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            whether there was a physical trespass, if the image or  
            recording could not have been achieved without a trespass  
            unless the visual or auditory enhancing device was used.   
            (Civil Code Section 1708.8 (b).) 

          5)Provides that a person who commits an assault with the intent  
            to capture any type of visual image, sound recording, or other  
            physical impression of the plaintiff is subject to the same  
            treble damages as is a person who commits a physical or  
            constructive invasion of privacy.  (Civil Code Section 1708.8  
            (c)-(f).) 

           COMMENTS  :  This author-sponsored bill seeks to strengthen  
          California's civil anti-stalking statute by expanding the  
          definition of stalking to include placing a person "under  
          surveillance."  The bill also amends California's civil invasion  
          of privacy statute to impose liability for false imprisonment  
          when committed with the intent to capture a visual image, sound  
          recording, or other physical impression of the plaintiff.  As  
          with the author's AB 524 (Chapter 499, Stats. of 2009), this  
          bill is primarily an effort to curb the often aggressive tactics  
          used by paparazzi to capture images and recordings of  
          celebrities and their families in order to satiate a public that  
          clamors for the intimate details of the lives of Hollywood  
          stars. 

           Adding "Place Under Surveillance" to the Existing Civil  
          Anti-Stalking Statute.   According to the author, this bill will  
          strengthen the civil anti-stalking statute so as to prevent  
          paparazzi from loitering outside of a celebrity's home or place  
          of work, or even outside of the schools of the celebrity's  
          children.  Existing law (Civil Code Section 1708.7) provides  
          that a person is liable for the tort of stalking if that person  
          engages in certain patterns of conduct that intentionally put  
          another person in fear of his or her safety, or the safety of  
          his or her immediate family.  The problem with existing law,  
          according to the author, is that the covered patterns of conduct  
          only include one who "follows, alarms, or harasses" another  
          person for no legitimate purpose.  However, the author contends  
          that persistently loitering outside of a person's home, school,  
          or workplace is --  and under the law should be -- enough to  
          create a "reasonable fear for one's safety," or the safety of  
          one's immediate family, that the anti-stalking statute was  
          intended to prevent.  Therefore, this bill would add the words  
          "place under surveillance" to the existing list of patterned  








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          conduct - follow, alarm, and harass - that constitutes  
          "stalking" for purposes of the civil anti-stalking statute. 

          Of course, the mere loitering outside of a person's home,  
          school, or workplace would not, by itself, create liability  
          under the statute.  As is true with existing law, in order to  
          prevail a plaintiff must not only prove that the defendant  
          engaged in the pattern of conduct; the plaintiff must also prove  
          that the conduct had the effect of putting the plaintiff in  
          reasonable fear AND generally that the defendant acted with the  
          intent to place the plaintiff in fear.  (This "intent" element  
          can also be met if the defendant's conduct was in violation of a  
          restraining order.)  In addition, the plaintiff must also show  
          that, on at least one occasion, he or she demanded that the  
          defendant cease the pattern of conduct and the defendant  
          persisted.  

           Adding "False Imprisonment" to the Invasion of Privacy Statute  .   
          Under the common law, there are four distinct categories of the  
          tort of "invasion of privacy:" (1) intrusion upon a plaintiff's  
          seclusion or solitude; (2) public disclosure of private facts;  
          (3) publicity that places the plaintiff in a "false light;" and,  
          (4) appropriation of a plaintiff's likeness or image for the  
          defendant's advantage.  Generally, the tort of intrusion  
          requires intrusion into a private place in a manner that would  
          be highly offensive to a reasonable person.  (Turnbull v. ABC,  
          2004 U.S. Dist. LEXIS 24351.)  California has attempted to  
          codify a combination of categories (2) and (4) - intrusion and  
          appropriation -- in Civil Code Section 1708.8, generally known  
          as the "invasion of privacy" statute.  A person committing the  
          torts of intrusion and appropriation are generally subject to  
          treble damages and other remedies, such as disgorgement of  
          profits and injunctive relief.  (Civil Code Section 1708.8  
          (d)-(f).)  However, the statute also specifies that a person who  
          commits an "assault" while attempting to capture a visual image,  
          sound recording, or other physical impression of the plaintiff  
          is subject to the same damages as one who commits an invasion of  
          privacy.  This bill would provide that "false imprisonment,"  
          along with assault, would similarly be subject to the same  
          damages as one who commits physical or constructive invasion of  
          privacy. 


          The bill does not define "false imprisonment," but presumably it  
          would have the same meaning that it has at common law: that is,  








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          the intentional infliction of "confinement," with confinement  
          defined as restricting a person to a confined physical space  
          without any path of escape.  Generally, the plaintiff must be  
          aware that he or she is confined.  (See Prosser, On Torts.)   
          This provision is apparently targeted at the practice of  
          paparazzi encircling or otherwise confining celebrities to the  
          point that they are denied an avenue of escape.  False  
          imprisonment is not generally considered a form of "invasion of  
          privacy," though, like invasion of privacy, it is an intentional  
          tort that is actionable in its own right.  Incorporating these  
          independent torts into the codification of the "invasion of  
          privacy" tort conflates what are in fact distinct torts, which  
          makes its placement in this statute potentially confusing.   
          However, the rationale for adding "false imprisonment" to the  
          invasion of privacy statute is apparently the same as the  
          justification for adding "assault" to this same statute in 2005:  
          so that the plaintiff bringing a civil action for assault or  
          false imprisonment will be entitled to the treble damages  
          provided for in the invasion of privacy statute. (See Assembly  
          Judiciary Committee, Analysis of AB 381, September 8, 2005.) 

           Bill in Print Would Change Application of the Statute to  
          Existing Forms of Stalking, Not Just "Surveillance  ."  While the  
          goal of this bill is clear and admirable, the bill as currently  
          in print regrettably appears to contain a number of structural  
          ambiguities. The bill therefore would be simpler and more  
          straight-forward if it simply added "place under surveillance"  
          to the list of patterns of conduct that constitute "stalking,"  
          (as the author has now agreed to amend it as proposed to be  
          amended.)  Instead, the author, apparently in an effort to  
          address the concerns of the Motion Picture Association of  
          America (MPAA), added to the current in-print version of the  
          measure a number of qualifying provisions and definitional  
          changes that appear to create redundancy and inadvertent  
          confusion.  Moreover, some of the definitional changes were made  
          in order to address "surveillance," but were done is such a way  
          that they would also modify the other patterns of conduct that  
          now constitute stalking, namely following, alarming, and  
          harassing.  

          Other qualifications in the current in-print version of the  
          measure seem contrary to the author's stated objectives.  For  
          example, the April 28 version of the bill includes a provision  
          stating that the provisions of the anti-stalking statute would  
          not impair or limit the production of a number of works,  








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          including audiovisual works, news or radio programs, magazines,  
          or "similar work."  This provision would seem to exempt some of  
          the very paparazzi activity that the author seeks to make  
          actionable.  Obviously the paparazzi could claim exemption on  
          the ground that they were producing an "audiovisual work," or  
          gathering "news," or taking a picture for a magazine or some  
          "similar work."  The exemption, in short, appeared to  
          inadvertently swallow the purpose of the bill, and this is cured  
          in the bill as now proposed to be amended. 

           PROPOSED COMMITTEE AMENDMENTS  :  In order to begin to address the  
          current structural problems with the bill in print, and to  
          ensure that the bill meets the author's objectives, the  
          Committee has recommended, and the author has agreed, to amend  
          the bill in Committee so as to add "place under surveillance"  
          but without changing parts of the surrounding statute.  In  
          addition, the bill as proposed to be amended, would add a  
          definition of "place under surveillance" that would appear to  
          addresses some, but not all, of the concerns raised by the MPAA.  
           And it would do this without modifying the existing statute as  
          a whole.  A mock-up of the existing statute with these proposed  
          amendments appears at the end of this analysis; however, in  
          brief, the Committee recommends deleting all the existing  
          changes that the bill makes to the existing statute (save one)  
          and making only the following two changes to existing Civil Code  
          Section 1708.7:

          Amend section 1708.7 (a) (1) of the Civil Code to read:

             1708.7. (a) A person is liable for the tort of stalking  
             when the plaintiff proves all of the following elements of  
             the tort:
                (1) The defendant engaged in a pattern of conduct the  
             intent of which was to follow, alarm,  place under  
             surveillance  or harass the plaintiff. In order to  
             establish this element, the plaintiff shall be required to  
             support his or her allegations with independent  
             corroborating evidence.

          In addition to adding "place under surveillance" to the list of  
          conduct that constitutes stalking, the Committee would also  
          propose adding the following definition:

           (5) "Place under surveillance" means remaining present outside  
          the plaintiff's school, place of employment, vehicle, residence,  








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          other than the residence of the defendant, or other place  
          occupied by the plaintiff.  For purposes of the liability  
          created by subdivision (a), "place under surveillance" does not  
          include any lawful activity of law enforcement personnel or  
          employees of agencies, either public or private, who, in the  
          course and scope of their employment , encourage or attempt to  
          engage in any conduct or activity to obtain evidence of  
          suspected illegal activity or other misconduct, suspected  
          violation of any administrative rule or regulation, suspected  
          fraudulent conduct, or any suspected activity involving a  
          violation of law or business practice or conduct of a public  
          official that adversely affects public welfare, health, or  
          safety. 
           
           This proposed definition appears to respond, at least in part,  
          to the concerns raised by the MPAA letter of opposition (which  
          is discussed in more detail below).  The language that describes  
          what is  not  included within the meaning of "place under  
          surveillance" is taken from language suggested by the MPAA to  
          exempt this kind of law enforcement or private investigative  
          activity from the anti-stalking statute as a whole.  However,  
          incorporating this language into the definition of "place under  
          surveillance" would appear to appropriately ensure that the  
          restriction only applies to the new conduct that is being added,  
          not to the statute as a whole.  This definition would appear to  
          ensure that the bill does not interfere with or limit the  
          actions of law enforcement, government agency investigators, or  
          private licensed investigators in the scope of their employment.  


           Engaging in "Surveillance" Does Not By Itself Create Liability  .   
          Both the introduced and April 28 version of this bill defined  
          "place under surveillance" in a manner that required an "intent  
          to engage in a pattern of conduct that places the plaintiff in  
          reasonable fear of for his or her safety or that of an immediate  
          family member."  The problem with this definition would appear  
          to that it confuses the definition of the conduct with the  
          elements of the tort.  That is, the statute already provides  
          that there is no liability for the tort of stalking unless the  
          plaintiff can prove that the conduct (1) caused the plaintiff to  
          reasonably fear for his or her safety or the safety of an  
          immediate family member, AND (2) that the conduct was done with  
          the intent of creating such fear.  The definition therefore  
          risks unintended confusion. 









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          The unintended confusion between the definition of the conduct  
          and the elements of the tort is also evident in the MPAA letter  
          of opposition, which raises the prospect that a plaintiff might  
          bring an action in tort merely because someone is parked outside  
          of their home, school, or workplace.  But recall that mere  
          conduct does not create liability.  Liability requires the  
          conduct plus all of the other elements of the tort.  Under the  
          rather stringent required elements in the statute, the plaintiff  
          would have to show not only that the defendant engaged in the  
          conduct, but that all of the following were also true: (1) the  
          conduct caused the plaintiff to reasonably fear for his or her  
          safety or the safety of an immediate family member; (2) the  
          defendant made a "credible threat" with the "intent" to place  
          the plaintiff in reasonable fear of his or her safety or the  
          safety of an immediate family member; (3) that on at least one  
          occasion the plaintiff clearly and definitively demanded that  
          the defendant cease and abate his or her pattern of conduct; and  
          (4) that the defendant persisted in his or her pattern conduct  
          even after the demand to stop.  The definition of the conduct,  
          in short, does not establish liability.  It requires the conduct  
          as defined, and all of the other necessary elements of the tort.  


          The above described amendments as proposed to be amended would  
          appear not to address all of the concerns of the measure's  
          opponents.  Moreover, the opposition's concern that adding  
          "surveillance" to the anti-stalking statute will require making  
          other changes to the statute in order to properly take account  
          of this addition appears to be well-founded.   Therefore, the  
          Committee may wish to recommend that the author continue to work  
          on this important bill with all of stakeholders to consider  
          other changes that may be warranted as the bill moves forward. 

          ARGUMENTS IN SUPPORT  :  The author contends that adding a  
          surveillance provision to the existing anti-stalking law will  
          "prevent aggressive paparazzi from stalking celebrities by  
          loitering outside celebrities' homes, schools, their children's  
          schools, car, churches, medical facilities, restaurants, etc.,  
          for an opportunity to take non-consensual photos.  The mere act  
          of placing someone under surveillance is enough to create fear  
          for one's safety . . . or the safety of an immediate family  
                                      member."  In addition, the author seeks to make paparazzi more  
          accountable by extending the enhanced penalties in the invasion  
          of privacy statute to any "false imprisonment" committed in an  
          effort to acquire a photo of a person against their wishes. 








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          The Paparazzi Reform Initiative (PRI) supports, in particular,  
          the provision of this bill that will extend the damages provided  
          in the invasion of privacy statute - especially disgorgement of  
          profits - to photographers who commit "false imprisonment" by  
          encircling celebrities to such an extent that they have no  
          possibility of escape. 

           ARGUMENTS IN OPPOSITION  :  The Motion Picture Association of  
          America (MPAA) opposes this bill, at least as it understands the  
          amendments that will be taken in Committee.  First, MPAA claims  
          that this bill will impede legitimate investigation and law  
          enforcement activities, in particular efforts by MPAA member  
          companies to investigate piracy.  MPAA claims that under this  
          bill, some the activity of MPAA members would be actionable.   
          MPAA also argues that this measure will interfere with news  
          gathering activities in a way that violates the First Amendment.  
          MPAA claims that if this bill became law, the subjects of news  
          stories could file a claim for stalking against the journalist  
          or broadcaster who engaged in surveillance in pursuit of the  
          story.  MPAA also claims that this bill will interfere with the  
          development of certain "reality" programming that secretly film  
          and surprise people, similar to the old "Candid Camera" show.   
          Finally, MPAA claims that existing privacy laws, including last  
          years AB 524, provide adequate protections, and that this bill  
          is simply unnecessary.

           Response to MPAA concerns and proposed amendments  .  The MPAA  
          recommends two amendments.  First, they seek an amendment that  
          would exempt lawful investigative activity, whether by private  
          or public entities, from any provisions of the anti-stalking  
          statute.  It is not clear whether the definition of "place under  
          surveillance" as proposed in this analysis will meet that  
          concern.  Their proposal would exempt such activity from any  
          tort action for stalking, not just those based on surveillance.   
          The proposed definition suggested by the Committee in this  
          analysis would restrict the exemption to claims based on  
          surveillance, but not, for example, on harassing conduct.   
          Second, MPAA seeks an exemption for persons engaged in  
          developing or producing audiovisual works, motion pictures,  
          television programming, news programs, magazines, or "similar  
          work."  As noted above, this broad definition would appear to  
          include some of the very paparazzi activity that the author  
          seeks to prevent. 









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          Finally, MPAA worries that persons engaging in lawful  
          investigations, news gathering, or production activities who  
          must engage in forms of "surveillance" will inadvertently be  
          potentially liable under the bill, due to the definition of  
          "surveillance."  However, as explained above, it is important to  
          reiterate that none of these activities by themselves would  
          appear to create liability. Merely engaging in acts of  
          surveillance is not actionable.  In addition to showing the  
          investigators engaged in surveillance, the plaintiff would also  
          need to allege that (1) the activity caused the plaintiff to  
          reasonably fear for his or her safety or the safety of an  
          immediate family member; (2) that the person engaging in the  
          activity acted with the  intent  to cause such fear; and (3) that  
          the plaintiff made at least one clear demand that the  
          investigator stop the activity and the defendant persisted in  
          the activity.  None of the activities mentioned by MPAA would  
          appear to create liability -- unless it was accompanied by  all   
          of the other elements of the tort.

           Prior Related Legislation  .  AB 524 (Chapter 499, Stats. of 2009)  
          amended the "invasion of privacy" statute (Civil Code Section  
          1708.8) so that a person who sells, transmits, publishes, or  
          broadcasts an image, recording, or physical impression of  
          someone engaged in a personal or familial activity violates the  
          state's "invasion of privacy" statute.  Previously, the statute  
          had only applied to the person who wrongfully obtained the  
          image, recording, or physical impression, but not necessarily  
          the entity that sold or published the image, recording, or  
          impression. 

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Paparazzi Reform Initiative 

           Opposition 
           
          Motion Picture Association of America 

           
          Analysis Prepared by  :  Thomas Clark / JUD. / (916) 319-2334