BILL NUMBER: AB 2306	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 22, 2014
	AMENDED IN ASSEMBLY  MARCH 28, 2014

INTRODUCED BY   Assembly  Member   Chau
  Members   Chau   and Waldron 
    (   Coauthor:   Senator   Jackson
  ) 

                        FEBRUARY 21, 2014

   An act to amend Section 1708.8 of the Civil Code, relating to
privacy.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2306, as amended, Chau.  Constructive invasion of privacy:
liability.
   Under existing law, except as specified, a person is liable for
constructive invasion of privacy when a person attempts to capture,
in a manner that is offensive to a reasonable person, any type of
visual image, sound recording, or other physical impression, through
the use of a visual or auditory enhancing device, of another person
engaging in a personal or familial activity under circumstances in
which the other person had a reasonable expectation of privacy.
Existing law subjects a person who commits a constructive invasion of
privacy to specified damages and civil fines.
   This bill would expand a person's potential liability for
constructive invasion of privacy, by removing the limitation that the
person use a visual or auditory enhancing device, and would instead
make the person liable when using any device to engage in the
above-described unlawful activity. 
   This bill would incorporate additional changes to Section 1708.8
of the Civil Code proposed by AB 1256 that would become operative if
this bill and AB 1256 are both enacted and this bill is enacted last.

   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1708.8 of the Civil Code is amended to read:
   1708.8.  (a) A person is liable for physical invasion of privacy
when the defendant knowingly enters onto the land of another person
without permission or otherwise committed a trespass in order to
physically invade the privacy of the plaintiff with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial
activity and the physical invasion occurs in a manner that is
offensive to a reasonable person.
   (b) A person is liable for constructive invasion of privacy when
the defendant attempts to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a personal or
familial activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of any device,
regardless of whether there is a physical trespass, if this image,
sound recording, or other physical impression could not have been
achieved without a trespass unless the device was used.
   (c) An assault or false imprisonment committed with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff is subject to subdivisions (d), (e), and
(h).
   (d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of
this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial purpose,
the defendant shall also be subject to disgorgement to the plaintiff
of any proceeds or other consideration obtained as a result of the
violation of this section. A person who comes within the description
of this subdivision is also subject to a civil fine of not less than
five thousand dollars ($5,000) and not more than fifty thousand
dollars ($50,000).
   (e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In
addition, the person that directs, solicits, actually induces, or
actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be
liable for punitive damages to the extent that an employer would be
subject to punitive damages pursuant to subdivision (b) of Section
3294. A person who comes within the description of this subdivision
is also subject to a civil fine of not less than five thousand
dollars ($5,000) and not more than fifty thousand dollars ($50,000).
   (f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast,
 sold   sold,  or offered for 
sale,   sale  the visual image, sound recording, or
other physical impression with actual knowledge that it was taken or
captured in violation of subdivision (a), (b), or (c), and 
provide  provided  compensation, consideration, or
remuneration, monetary or otherwise, for the rights to the unlawfully
obtained visual image, sound recording, or other physical
impression.
   (2) For the purposes of paragraph (1), "actual knowledge" means
actual awareness, understanding, and recognition, obtained prior to
the time at which the person purchased or acquired the visual image,
sound recording, or other physical impression, that the visual image,
sound recording, or other physical impression was taken or captured
in violation of subdivision (a), (b), or (c). The plaintiff shall
establish actual knowledge by clear and convincing evidence.
   (3) Any person that publicly transmits, publishes, broadcasts,
 sells   sells,  or offers for sale, in any
form, medium,  format   format,  or work,
a visual image, sound recording, or other physical impression that
was previously publicly transmitted, published, broadcast, 
sold   sold,  or offered for  sale,
  sale  by another person, is exempt from liability
under this section.
   (4) If a person's first public transmission, publication,
broadcast, or sale or offer for  sale,   sale
 of a visual image, sound recording, or other physical
impression that was taken or captured in violation of subdivision
(a), (b), or  (c),   (c)  does not
constitute a violation of this section, that person's subsequent
public transmission, publication, broadcast,  sale
 sale,  or offer for sale, in any form, medium, 
format   format,  or work, of the visual image,
sound recording, or other physical impression, does not constitute a
violation of this section.
   (5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.
   (6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.
   (7) This section shall not be construed to limit all other rights
or remedies of the plaintiff in law or equity, including, but not
limited to, the publication of private facts.
   (g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or employees
of governmental agencies or other entities, either public or private
who, in the course and scope of their employment, and supported by
an articulable suspicion, attempt to capture any type of visual
image, sound recording, or other physical impression of a person
during an investigation, surveillance, or monitoring of any conduct
to obtain evidence of suspected illegal activity or other misconduct,
the suspected violation of any administrative rule or regulation, a
suspected fraudulent conduct, or any activity involving a violation
of law or business practices or conduct of public officials adversely
affecting the public welfare,  health   health,
 or safety.
   (h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a), (b),
or (c).
   (i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
   (j) It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold.
   (k) For the purposes of this section, "for a commercial purpose"
means any act done with the expectation of a sale, financial gain, or
other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended to
have  been   been,  captured for a
commercial purpose unless it is intended to be, or was in fact, sold,
published, or transmitted.
   (l) For the purposes of this section, "personal and familial
activity" includes, but is not limited to, intimate details of the
plaintiff's personal life, interactions with the plaintiff's family
or significant others, or other aspects of the plaintiff's private
affairs or concerns. "Personal and familial activity" does not
include illegal or otherwise criminal activity as delineated in
subdivision (g). However, "personal and familial activity" shall
include the activities of victims of crime in circumstances under
which subdivision (a), (b), or (c) would apply.
   (m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.
   (2) Fines collected pursuant to this subdivision shall be
allocated, as follows:
   (A) One-half shall be allocated to the prosecuting agency.
   (B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.
   (3) Funds in the Arts and Entertainment Fund created pursuant to
paragraph (2) may be expended by the California Arts Council, upon
appropriation by the Legislature, to issue grants pursuant to the
Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9
(commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).
   (4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies provided
by law.
   (n) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
   SEC. 1.5.    Section 1708.8 of the   Civil
Code   is amended to read: 
   1708.8.  (a) A person is liable for physical invasion of privacy
when the defendant knowingly enters onto the land of another person
without permission or otherwise committed a trespass in order to
 physically invade the privacy of the plaintiff with the
intent to  capture any type of visual image, sound
recording, or other physical impression of the plaintiff engaging in
a  personal     private, personal,
 or familial activity and the  physical 
invasion occurs in a manner that is offensive to a reasonable person.

   (b) A person is liable for constructive invasion of privacy when
the defendant attempts to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a 
personal or familial activity under circumstances in which the
plaintiff had a reasonable expectation of privacy,  
private, personal, or familial activity,  through the use of
 a visual or auditory enhancing   any 
device, regardless of whether there is a physical trespass, if this
image, sound recording, or other physical impression could not have
been achieved without a trespass unless the  visual or
auditory enhancing  device was used.
   (c) An assault or false imprisonment committed with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff is subject to subdivisions (d), (e), and
(h).
   (d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of
this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial purpose,
the defendant shall also be subject to disgorgement to the plaintiff
of any proceeds or other consideration obtained as a result of the
violation of this section. A person who comes within the description
of this subdivision is also subject to a civil fine of not less than
five thousand dollars ($5,000) and not more than fifty thousand
dollars ($50,000).
   (e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In
addition, the person that directs, solicits, actually induces, or
actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be
liable for punitive damages to the extent that an employer would be
subject to punitive damages pursuant to subdivision (b) of Section
3294. A person who comes within the description of this subdivision
is also subject to a civil fine of not less than five thousand
dollars ($5,000) and not more than fifty thousand dollars ($50,000).
   (f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast,
 sold   sold,  or offered for 
sale,   sale  the visual image, sound recording, or
other physical impression with actual knowledge that it was taken or
captured in violation of subdivision (a), (b), or (c), and 
provide   provided  compensation, consideration, or
remuneration, monetary or otherwise, for the rights to the
unlawfully obtained visual image, sound recording, or other physical
impression.
   (2) For the purposes of paragraph (1), "actual knowledge" means
actual awareness, understanding, and recognition, obtained prior to
the time at which the person purchased or acquired the visual image,
sound recording, or other physical impression, that the visual image,
sound recording, or other physical impression was taken or captured
in violation of subdivision (a), (b), or (c). The plaintiff shall
establish actual knowledge by clear and convincing evidence.
   (3) Any person that publicly transmits, publishes, broadcasts,
 sells   sells,  or offers for sale, in any
form, medium,  format   format,  or work,
a visual image, sound recording, or other physical impression that
was previously publicly transmitted, published, broadcast, 
sold   sold,  or offered for  sale,
  sale  by another person, is exempt from liability
under this section.
   (4) If a person's first public transmission, publication,
broadcast, or sale or offer for  sale,   sale
 of a visual image, sound recording, or other physical
impression that was taken or captured in violation of subdivision
(a), (b), or  (c),   (c)  does not
constitute a violation of this section, that person's subsequent
public transmission, publication, broadcast,  sale 
 sale,  or offer for sale, in any form, medium, 
format   format,  or work, of the visual image,
sound recording, or other physical impression, does not constitute a
violation of this section.
   (5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.
   (6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.
   (7) This section shall not be construed to limit all other rights
or remedies of the plaintiff in law or equity, including, but not
limited to, the publication of private facts.
   (g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or employees
of governmental agencies or other entities, either public or private
who, in the course and scope of their employment, and supported by
an articulable suspicion, attempt to capture any type of visual
image, sound recording, or other physical impression of a person
during an investigation, surveillance, or monitoring of any conduct
to obtain evidence of suspected illegal activity or other misconduct,
the suspected violation of any administrative rule or regulation, a
suspected fraudulent conduct, or any activity involving a violation
of law or business practices or conduct of public officials adversely
affecting the public welfare,  health   health,
 or safety.
   (h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a), (b),
or (c).
   (i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
   (j) It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold.
   (k) For the purposes of this section, "for a commercial purpose"
means any act done with the expectation of a sale, financial gain, or
other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended to
have  been   been,  captured for a
commercial purpose unless it is intended to be, or was in fact, sold,
published, or transmitted. 
   (l) (1) For the purposes of this section, "private, personal, and
familial activity" includes, but is not limited to:  
   (A) Intimate details of the plaintiff's personal life under
circumstances in which the plaintiff has a reasonable expectation of
privacy.  
   (B) Interaction with the plaintiff's family or significant others
under circumstances in which the plaintiff has a reasonable
expectation of privacy.  
   (C) If and only after the defendant has been convicted of
violating Section 626.8 of the Penal Code, any activity that occurs
when minors are present at any location set forth in subdivision (a)
of Section 626.8 of the Penal Code.  
   (D) Any activity that occurs on a residential property under
circumstances in which the plaintiff has a reasonable expectation of
privacy.  
   (E) Other aspects of the plaintiff's private affairs or concerns
under circumstances in which the plaintiff has a reasonable
expectation of privacy.  
   (l)  For the purposes of this section, "personal 
    (2)     "Private, personal,  and
familial activity"  includes, but is not limited to, intimate
details of the plaintiff's personal life, interactions with the
plaintiff's family or significant others, or other aspects of the
plaintiff's private affairs or concerns. "Personal and familial
activity"  does not include illegal or otherwise criminal
activity as delineated in subdivision (g). However, 
"personal   "private, personal,  and familial
activity" shall include the activities of victims of crime in
circumstances under which subdivision (a), (b), or (c) would apply.
   (m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.
   (2) Fines collected pursuant to this subdivision shall be
allocated, as follows:
   (A) One-half shall be allocated to the prosecuting agency.
   (B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.
   (3) Funds in the Arts and Entertainment Fund created pursuant to
paragraph (2) may be expended by the California Arts Council, upon
appropriation by the Legislature, to issue grants pursuant to the
Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9
(commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).
   (4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies provided
by law.
   (n) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
   SEC. 2.    Section 1.5 of this bill incorporates
amendments to Section 1708.8 of the Civil Code proposed by both this
bill and AB 1256. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2015, (2)
each bill amends Section 1708.8 of the Civil Code, and (3) this bill
is enacted after AB 1256, in which case Section 1 of this bill shall
not become operative.