BILL ANALYSIS                                                                                                                                                                                                    Ķ






                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                              2013-2014 Regular Session


          AB 2306 (Chau)
          As Amended March 28, 2014
          Hearing Date: June 10, 2014
          Fiscal: No
          Urgency: No
          RD


                                        SUBJECT
                                           
                     Constructive invasion of privacy: liability

                                      DESCRIPTION  

          Existing law makes a person liable for a constructive invasion  
          of privacy for attempting to capture, in a manner highly  
          offensive to a reasonable person, any type of 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, as specified.

          This bill would remove the limitation of this provision to the  
          use of a visual or auditory enhancing device, and instead make  
          the person liable for constructive invasion of privacy through  
          the use of any device that otherwise takes a physical impression  
          of another person engaging in a personal or familial activity as  
          otherwise prohibited under existing law. 

                                      BACKGROUND  

          In 1998, in response to the tragic death of Princess Diana,  
          California became the first state in the nation to pass  
          legislation to attempt to rein in overzealous and aggressive  
          photographers and reporters, known as "paparazzi."  In order to  
          supplement the common law tort of invasion of privacy, the  
          Legislature created a statutory cause of action for "invasion of  
          privacy" that imposes liability on any person who: (1) intrudes  
          upon the private space of another person; (2) in order to  
          capture images or recordings of that person engaging in a  
          personal or familial activity; (3) in a manner that is offensive  
                                                                (more)



          AB 2306 (Chau)
          Page 2 of ?



          to a reasonable person.  (Civ. Code Sec. 1708.8; SB 262 (Burton,  
          Ch. 1000, Stats. 1998).)  The statute was subsequently amended  
          in 2005 to additionally provide that assault committed with  
          intent to photograph or record a person is subject to the same  
          remedies available for physical or constructive invasion of  
          privacy.  (AB 381 (Montanez, Ch. 424, Stats. 2005).)  

          Despite the enactment of these statutory remedies, there  
          continued to be a flurry of news reports on the increasing  
          tension between celebrities and photographers, which at times  
          have escalated to the point of physical confrontations.  In  
          response, in 2009, AB 524 (Bass, Ch. 449, Stats. 2009) was  
          enacted to expand the reach of the state's "invasion of privacy"  
          statute to include the sale, publication, or broadcast of a  
          physical impression of someone engaged in a personal or familial  
          activity if the person knows that the image was unlawfully  
          obtained.  By attaching liability to publishers who use  
          paparazzi, the bill sought to remove the financial incentive for  
          paparazzi to continue pursuing and photographing celebrities.  

          This bill now seeks to expand liability for "constructive  
          invasion of privacy" by applying the statute to the use of any  
          device, thus, removing the existing restrictions that a device  
          must be "visual or audio enhancing." 

                                CHANGES TO EXISTING LAW
           
           Existing common law  recognizes four distinct categories of the  
          tort of "invasion of privacy:" (a) intrusion upon a plaintiff's  
          seclusion or solitude; (b) public disclosure of private facts;  
          (c) publicity that places the plaintiff in a "false light;" and  
          (d) appropriation of a plaintiff's likeness or image for the  
          defendant's advantage.  (Turnbull v. American Broadcasting  
          Companies, (2004) 32 Media L. Rep. 2442.)  

           Existing law 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.  (Civ. Code Sec. 1708.8 (a).) 
           
           Existing law  makes a person liable for "constructive invasion of  
          privacy" for attempting to capture, in a manner highly offensive  
                                                                      



          AB 2306 (Chau)
          Page 3 of ?



          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 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.  (Civ. Code Sec. 1708.8 (b).) 

           Existing law  defines "personal or familial activity" as  
          including, but not limited to, intimate details of the  
          plaintiff's personal life, interactions with family or  
          significant others, or other aspects of the plaintiff's private  
          affairs or concerns.  (Civ. Code Sec. 1708.8 (l).) 

           Existing law  provides that a person who violates the "invasion  
          of privacy" statute, or who directs, solicits, actually induces,  
          or actually causes another person to violate the statute would  
          be subject to specified damages, including a civil fine of not  
          less than $5,000 and not more than $50,000.  (Civ. Code Sec.  
          1708.8(d), (e).) 

           This bill  would, with respect to the statutory tort of  
          "constructive invasion of privacy," would remove the requirement  
          that the device used to capture the physical impression of the  
          plaintiff enhance either the video or audio.   

                                        COMMENT
           
          1.   Stated need for the bill
           
          According to the author:

            AB 2306 clarifies California privacy laws by making the use of  
            any device a constructive invasion privacy. 

            For years, California has been at the forefront of both  
            innovation and privacy protection. California is unique in  
            that its Constitution expressly protects an individual's right  
            to privacy from both governmental and private actors.

            For the past decade, continuing innovation and improvements in  
            technology have paved the way for the dramatic growth of new  
            electronic devices. With a swipe of a finger, individuals can  
            access the Internet, take digital photography, and track their  
                                                                      



          AB 2306 (Chau)
          Page 4 of ?



            location all within the context of their smartphones.  

            In addition, the recent development of Unmanned Aircraft  
            Systems, often referred to as "drones," has the potential to  
            revolutionize the way we transport, photograph and survey.  As  
            the Federal Aviation Administration prepares to integrate  
            drones into our nation's airspace, manufacturers and  
            industries will be required to comply with federal, state and  
            other laws as they try to harness the tremendous potential of  
            this new technology while also respecting individual privacy. 

            [ . . . ]

            As technology continues to expand, drones will not be limited  
            to merely aerial devices. Instead, advances in robotics will  
            pave the way for manufacturers to develop new devices capable  
            of accessing previously inaccessible locations and performing  
            otherwise difficult task[s] from a distance. These  
            advancements will open new avenues of innovation and  
            productivity for our society, but will also have the potential  
            to erode our sense of privacy. 

            AB 2306 will clarify California privacy laws to better  
            encompass future advances in technology. It makes it a  
            constructive invasion of privacy to capture an image or sound  
            recording in a manner that is offensive to a reasonable  
            person, under circumstance where the subject had a reasonable  
            expectation of privacy, through the use of any device. This  
            would cover current and future advances in technology  
            including but not limited to the use of drones or other visual  
            or auditory enhancing devices.

          2.    Existing standards for "constructive invasion of privacy"  
            would not change  

          Under existing law, a constructive invasion of privacy is deemed  
          to have occurred if a person attempts to capture in a manner  
          highly offensive to a reasonable person any 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 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.  (Civ. Code Sec. 1708.8(b).)  As a result, unless an audio  
                                                                      



          AB 2306 (Chau)
          Page 5 of ?



          or visual enhancing device is used, there can be no constructive  
          invasion of privacy.  This bill would remove the limitation that  
          devices used to violate a person's privacy must have visual or  
          audio enhancing capabilities thereby allowing for a finding of  
          constructive invasion of privacy where newer technologies enable  
          individuals to invade the privacy of others using devices (such  
          as drones) without any audio or visual enhancing capabilities.  

          The author argues that such a change is justified in light of  
          evolving technologies that would result in the same outcome  
          (constructive invasion of a person's privacy) without having to  
          resort to audio or visual enhancing devices:

            The critical requirement for the constructive invasion of  
            privacy is the fact that the use of a device made possible an  
            invasion that otherwise could only have occurred with a  
            physical trespass, not the type of device used. New  
            technologies in the future could permit an invasion of privacy  
            without a physical trespassing even though the device might  
            not qualify as a "visual or auditory enhancing device."  

            AB 2306 will clarify California privacy laws to better  
            encompass future advances in technology. It makes it a  
            constructive invasion of privacy to capture an image or sound  
            recording in a manner that is offensive to a reasonable  
            person, under circumstance where the subject had a reasonable  
            expectation of privacy, through the use of any device. This  
            would cover current and future advances in technology  
            including but not limited to the use of drones or other visual  
            or auditory enhancing devices. All of the other existing  
            elements of the statutes still must be met in order for  
            liability to exist.

          Staff notes that this bill would not change the elements of  
          constructive invasion of privacy - it would merely change the  
          devices through which the invasion could be deemed to have  
          occurred. In other words, just as under existing law, the  
          plaintiff would have to prove that the defendant attempted to  
          capture (1) in a manner highly offensive to a reasonable person,  
          (2) any visual image, sound recording or other physical  
          impression of another person engaging in a personal or familial  
          activity, (3) under circumstances in which the plaintiff had a  
          reasonable expectation of privacy, and that (4) absent the use  
          of the device, the image or recording could not have been  
          achieved without trespass.  As a practical matter, these  
          elements are what actually help ensure that ordinary uses of  
                                                                      



          AB 2306 (Chau)
          Page 6 of ?



          basic technology, such as non-zoom cameras on one's phone, would  
          not result in a violation of this law.  Accordingly, under this  
          bill, it is highly unlikely that a person could be found in  
          violation of this law when making the ordinary use of their  
          device for their private purposes without any intention of  
          capturing the private or familial moments of another person.  


           Support  :  None Known

           Opposition  :  None Known 

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  AB 1256 (Bloom, 2014) would revise  
          the physical and constructive invasion of privacy  civil  
          liability provisions to, among other things, apply to private  
          activities as well, as specified.   AB 1256 is currently  
          awaiting hearing in this Committee. 

           Prior Legislation  :  

          SB 15 (Padilla, 2013) would have, among other things, clarified  
          that a constructive invasion of privacy may occur through the  
          use of an unmanned aircraft system, as defined. 

          SB 262 (Burton, Ch. 1000, Stats. 1998) See Background.  

          AB 381 (Montaņez, Ch. 424, Stats. 2005) See Background.   

          AB 524 (Bass, Ch. 449, Stats. 2009) See Background.  

          AB 2479 (Bass, Ch. 685, Stats. 2010) See Background.  

           Prior Vote  :

          Assembly Floor (Ayes 78, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

                                   **************
          



                                                                      



          AB 2306 (Chau)
          Page 7 of ?