BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    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  
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          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).

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           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  

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            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,  

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            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

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