BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2306| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 2306 Author: Chau (D), et al. Amended: 8/22/14 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE : 7-0, 6/10/14 AYES: Jackson, Anderson, Corbett, Lara, Leno, Monning, Vidak ASSEMBLY FLOOR : 78-0, 5/15/14 (Consent) - See last page for vote SUBJECT : Constructive invasion of privacy: liability SOURCE : Author DIGEST : This bill expands a person's potential liability for constructive invasion of privacy, by removing the limitation that the person uses a visual or auditory enhancing device, and instead makes the person liable when using any device to engage in the specified unlawful activity. Senate Floor Amendments of 8/22/14 add a coauthor, add double-jointing language to avoid chaptering out issues with AB 1256 (Bloom) and make technical changes. ANALYSIS : Existing common law recognizes 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 CONTINUED AB 2306 Page 2 or image for the defendant's advantage. Existing law: 1.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. 2.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 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. 3.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. 4.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. This bill: 1.Removes, with respect to the statutory tort of "constructive invasion of privacy," the requirement that the device used to capture the physical impression of the plaintiff enhance either the video or audio. 2.Contains double-jointing language to prevent chaptering out issues with AB 1256 (Bloom). CONTINUED AB 2306 Page 3 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 to a reasonable person. (SB 262, Burton, Chapter 1000, Statutes of 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, Chapter 424, Statutes of 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, Chapter 449, Statutes of 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. Comments 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 CONTINUED AB 2306 Page 4 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 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No ASSEMBLY FLOOR : 78-0, 5/15/14 AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom, CONTINUED AB 2306 Page 5 Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley, Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox, Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Grove, Hagman, Hall, Harkey, Roger Hernández, Holden, Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea, John A. Pérez, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner, Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, Atkins NO VOTE RECORDED: Mansoor, Vacancy AL:k 8/25/14 Senate Floor Analyses SUPPORT/OPPOSITION: NONE RECEIVED **** END **** CONTINUED