Amended in Senate April 22, 2013

Amended in Senate April 1, 2013

Senate Bill No. 15

Introduced by Senator Padilla

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(Coauthor: Senator Jackson)

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December 3, 2012

An act to amend Section 1708.8 of the Civil Code, and to amend Sections 632 begin delete and end delete begin insert , end insert 647 begin insert , and 1525 end insert of, and to add Title 14 (commencing with Section 14350) to Part 4 of, the Penal Code, relating to aviation.

LEGISLATIVE COUNSEL’S DIGEST

SB 15, as amended, Padilla. Aviation: unmanned aircraft systems.

Existing federal law, the Federal Aviation Administration Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

Existing law provides that a person is subject to civil liability for constructive invasion of privacy when the 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 of another person engaged in a personal or familial activity under circumstances involving a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, as specified.

Existing law makes it a crime for a person, intentionally, and without requisite consent, to eavesdrop on a confidential communication by means of any electronic amplifying or recording device.

Existing law makes it a crime for a person to look through a hole or opening or otherwise view, by means of any instrumentality, the interior of bedrooms, bathrooms, and various other areas in which an occupant has a reasonable expectation of privacy, with the intent to invade the privacy of one or more persons inside. Existing law makes it a crime for a person to use a concealed camcorder, motion picture camera, or photographic camera to secretly videotape, film, photograph, or record by electronic means, without consent, another identifiable person, under or through the clothing being worn by that person or if that person may be in a state of full or partial undress, under circumstances when that person has a reasonable expectation of privacy and when there is an intent to invade the privacy of that person, as specified.

This bill would, under the above-referenced civil and criminal provisions, provide that engaging in the prohibited activities with devices or instrumentalities affixed to or contained within an unmanned aircraft system is included within the prohibitions. With respect to the criminal provisions, the bill would impose a state-mandated local program by changing the definition of a crime.

This bill would also provide that an unmanned aircraft system may not be equipped with a weapon.

This bill would define “unmanned aircraft system” for all of these purposes.

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Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing or things, and the place to be searched.

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This bill would additionally require that an application for a search warrant specify if an unmanned aircraft system, as defined, will be used in the execution of the search warrant, and the intended purpose for which the unmanned aircraft system will be used.

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This bill would also state the intent of the Legislature to enact legislation that would establish appropriate standards for the use of unmanned aircraft systems.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

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

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) Recent developments and innovations have allowed computer
technology to advance to the point where vehicles, including
aircraft, can operate without the need of an on-board operator.

(b) On February 14, 2012, President Obama signed into law the
Federal Aviation Administration Modernization and Reform Act
of 2012, which, among other things, requires the Federal Aviation
Administration to fully integrate government, commercial, and
recreational unmanned aircraft systems, commonly known as
“drones,” into United States airspace before October 2015.

(c) While privately and publicly operated unmanned aircraft
systems can have a legitimate role in areas such as agriculture,
scientific research, and public safety, these systems present new
challenges to the privacy and due process rights of Californians.

(d) Both public and private operators of unmanned aircraft
systems have a responsibility to not infringe on the rights, property,
or privacy of the citizens of California, and any data, information,
photographs, video, or recordings of individuals, both public and
private, should be minimized and retained in a manner consistent
with current privacy standards.

(e) It is the intent of the Legislature to enact legislation that
would establish appropriate standards for the use of unmanned
aircraft systems in California.

SEC. 2.  

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 a visual or
auditory enhancing device, including a device affixed to or
contained within an unmanned aircraft system as defined in Section
14350 of the Penal Code, 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 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 or offered for 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 was
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 or offers for sale, in any form, medium, format or work, a
visual image, sound recording, or other physical impression that
was previously publicly transmitted, published, broadcast, sold or
offered for 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, of a visual image, sound recording, or
other physical impression that was taken or captured in violation
of subdivision (a), (b), or (c), does not constitute a violation of this
section, that person’s subsequent public transmission, publication,
broadcast, sale or offer for sale, in any form, medium, 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 any other cause
of action, right, or remedy 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 begin insert , end insert 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, 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. 3.  

Section 632 of the Penal Code is amended to read:

632.  

(a) Every person who, intentionally and without the
consent of all parties to a confidential communication, by means
of any electronic amplifying or recording device, including a device
affixed to or contained within an unmanned aircraft system as
defined in Section 14350, eavesdrops upon or records the
confidential communication, whether the communication is carried
on among the parties in the presence of one another or by means
of a telegraph, telephone, or other device, except a radio, shall be
punished by a fine not exceeding two thousand five hundred dollars
($2,500), or imprisonment in begin delete the end delete begin insert a end insert county jail not exceeding one
year, or in the state prison, or by both that fine and imprisonment.
If the person has previously been convicted of a violation of this
section or Section 631, 632.5, 632.6, 632.7, or 636, the person
shall be punished by a fine not exceeding ten thousand dollars
($10,000), by imprisonment in begin delete the end delete begin insert a end insert county jail not exceeding one
year, or in the state prison, or by both that fine and imprisonment.

(b) The term “person” includes an individual, business
association, partnership, corporation, limited liability company,
or other legal entity, and an individual acting or purporting to act
for or on behalf of any government or subdivision thereof, whether
federal, state, or local, but excludes an individual known by all
parties to a confidential communication to be overhearing or
recording the communication.

(c) The term “confidential communication” includes any
communication carried on in circumstances as may reasonably
indicate that any party to the communication desires it to be
confined to the parties thereto, but excludes a communication made
in a public gathering or in any legislative, judicial, executive or
administrative proceeding open to the public, or in any other
circumstance in which the parties to the communication may
reasonably expect that the communication may be overheard or
recorded.

(d) Except as proof in an action or prosecution for violation of
this section, no evidence obtained as a result of eavesdropping
upon or recording a confidential communication in violation of
this section shall be admissible in any judicial, administrative,
legislative, or other proceeding.

(e) This section does not apply (1) to any public utility engaged
in the business of providing communications services and facilities,
or to the officers, employees or agents thereof, where the acts
otherwise prohibited by this section are for the purpose of
construction, maintenance, conduct or operation of the services
and facilities of the public utility, or (2) to the use of any
instrument, equipment, facility, or service furnished and used
pursuant to the tariffs of a public utility, or (3) to any telephonic
communication system used for communication exclusively within
a state, county, city and county, or city correctional facility.

(f) This section does not apply to the use of hearing aids and
similar devices, by persons afflicted with impaired hearing, for
the purpose of overcoming the impairment to permit the hearing
of sounds ordinarily audible to the human ear.

SEC. 4.  

Section 647 of the Penal Code is amended to read:

647.  

Except as provided in subdivision (l), every person who
commits any of the following acts is guilty of disorderly conduct,
a misdemeanor:

(a) Who solicits anyone to engage in or who engages in lewd
or dissolute conduct in any public place or in any place open to
the public or exposed to public view.

(b) Who solicits or who agrees to engage in or who engages in
any act of prostitution. A person agrees to engage in an act of
prostitution when, with specific intent to so engage, he or she
manifests an acceptance of an offer or solicitation to so engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution.
No agreement to engage in an act of prostitution shall constitute
a violation of this subdivision unless some act, in addition to the
agreement, is done within this state in furtherance of the
commission of an act of prostitution by the person agreeing to
engage in that act. As used in this subdivision, “prostitution”
includes any lewd act between persons for money or other
consideration.

(c) Who accosts other persons in any public place or in any
place open to the public for the purpose of begging or soliciting
alms.

(d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.

(e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.

(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.

(g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour
treatment and evaluation of inebriates. A peace officer may place
a person in civil protective custody with that kind and degree of
force which would be lawful were he or she effecting an arrest for
a misdemeanor without a warrant. No person who has been placed
in civil protective custody shall thereafter be subject to any criminal
prosecution or juvenile court proceeding based on the facts giving
rise to this placement. This subdivision shall not apply to the
following persons:

(1) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.

(2) Any person who a peace officer has probable cause to believe
has committed any felony, or who has committed any misdemeanor
in addition to subdivision (f).

(3) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.

(h) Who loiters, prowls, or wanders upon the private property
of another, at any time, without visible or lawful business with the
owner or occupant. As used in this subdivision, “loiter” means to
delay or linger without a lawful purpose for being on the property
and for the purpose of committing a crime as opportunity may be
discovered.

(i) Who, while loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of
any inhabited building or structure, without visible or lawful
business with the owner or occupant.

(j) (1) Any person who looks through a hole or opening, into,
or otherwise views, by means of any instrumentality, including,
but not limited to, a periscope, telescope, binoculars, camera,
motion picture camera, camcorder, or mobile phone, or by means
of any of these instrumentalities affixed to or contained within an
unmanned aircraft system as defined in Section 14350, the interior
of a bedroom, bathroom, changing room, fitting room, dressing
room, or tanning booth, or the interior of any other area in which
the occupant has a reasonable expectation of privacy, with the
intent to invade the privacy of a person or persons inside. This
subdivision shall not apply to those areas of a private business
used to count currency or other negotiable instruments.

(2) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, including any of those
devices when affixed to or contained within an unmanned aircraft
system, to secretly videotape, film, photograph, or record by
electronic means, another, identifiable person under or through
the clothing being worn by that other person, for the purpose of
viewing the body of, or the undergarments worn by, that other
person, without the consent or knowledge of that other person,
with the intent to arouse, appeal to, or gratify the lust, passions,
or sexual desires of that person and invade the privacy of that other
person, under circumstances in which the other person has a
reasonable expectation of privacy.

(3) (A) Any person who uses a concealed camcorder, motion
picture camera, or photographic camera of any type, including any
of those devices when affixed to or contained within an unmanned
aircraft system, to secretly videotape, film, photograph, or record
by electronic means, another, identifiable person who may be in
a state of full or partial undress, for the purpose of viewing the
body of, or the undergarments worn by, that other person, without
the consent or knowledge of that other person, in the interior of a
bedroom, bathroom, changing room, fitting room, dressing room,
or tanning booth, or the interior of any other area in which that
other person has a reasonable expectation of privacy, with the
intent to invade the privacy of that other person.

(B) Neither of the following is a defense to the crime specified
in this paragraph:

(i) The defendant was a cohabitant, landlord, tenant, cotenant,
employer, employee, or business partner or associate of the victim,
or an agent of any of these.

(ii) The victim was not in a state of full or partial undress.

(k) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been once previously convicted
of a violation of that subdivision, the previous conviction shall be
charged in the accusatory pleading. If the previous conviction is
found to be true by the jury, upon a jury trial, or by the court, upon
a court trial, or is admitted by the defendant, the defendant shall
be imprisoned in a county jail for a period of not less than 45 days
and shall not be eligible for release upon completion of sentence,
on probation, on parole, on work furlough or work release, or on
any other basis until he or she has served a period of not less than
45 days in a county jail. In all cases in which probation is granted,
the court shall require as a condition thereof that the person be
confined in a county jail for at least 45 days. In no event does the
court have the power to absolve a person who violates this
subdivision from the obligation of spending at least 45 days in
confinement in a county jail.

In any accusatory pleading charging a violation of subdivision
(b), if the defendant has been previously convicted two or more
times of a violation of that subdivision, each of these previous
convictions shall be charged in the accusatory pleading. If two or
more of these previous convictions are found to be true by the jury,
upon a jury trial, or by the court, upon a court trial, or are admitted
by the defendant, the defendant shall be imprisoned in a county
jail for a period of not less than 90 days and shall not be eligible
for release upon completion of sentence, on probation, on parole,
on work furlough or work release, or on any other basis until he
or she has served a period of not less than 90 days in a county jail.
In all cases in which probation is granted, the court shall require
as a condition thereof that the person be confined in a county jail
for at least 90 days. In no event does the court have the power to
absolve a person who violates this subdivision from the obligation
of spending at least 90 days in confinement in a county jail.

In addition to any punishment prescribed by this section, a court
may suspend, for not more than 30 days, the privilege of the person
to operate a motor vehicle pursuant to Section 13201.5 of the
Vehicle Code for any violation of subdivision (b) that was
committed within 1,000 feet of a private residence and with the
use of a vehicle. In lieu of the suspension, the court may order a
person’s privilege to operate a motor vehicle restricted, for not
more than six months, to necessary travel to and from the person’s
place of employment or education. If driving a motor vehicle is
necessary to perform the duties of the person’s employment, the
court may also allow the person to drive in that person’s scope of
employment.

(l) (1) A second or subsequent violation of subdivision (j) is
punishable by imprisonment in a county jail not exceeding one
year, or by a fine not exceeding two thousand dollars ($2,000), or
by both that fine and imprisonment.

(2) If the victim of a violation of subdivision (j) was a minor at
the time of the offense, the violation is punishable by imprisonment
in a county jail not exceeding one year, or by a fine not exceeding
two thousand dollars ($2,000), or by both that fine and
imprisonment.

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begin insert SEC. 5. end insert   

end insert

begin insert Section 1525 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1525.  

begin insert (a) end insert begin insert   end insert A search warrant cannot be issued but upon probable
cause, supported by affidavit, naming or describing the person to
be searched or searched for, and particularly describing the
property, begin delete thing, end delete begin insert thing end insert or things begin insert , end insert and the place to be searched.

begin delete

The

end delete

begin insert (b) end insert begin insert   end insert begin insert The end insert application shall specify begin insert , end insert when applicable, that the place
to be searched is in the possession or under the control of an
attorney, physician, psychotherapist begin insert , end insert or clergyman.

begin insert

(c) The application shall specify if an unmanned aircraft system,
as defined in Section 14350, will be used in the execution of the
search warrant, and the intended purpose for which the unmanned
aircraft system will be used.

end insert

begin delete SEC. 5. end delete
begin insert SEC. 6. end insert   

Title 14 (commencing with Section 14350) is added
to Part 4 of the Penal Code, to read:

 

Title 14.  UNMANNED AIRCRAFT SYSTEMS

 

14350.  

“Unmanned aircraft system” means unmanned aircraft
and associated elements, including communication links and the
components that control the unmanned aircraft, that are required
for the pilot in command to operate the unmanned aircraft safely
and efficiently within the national airspace system.

14351.  

An unmanned aircraft system may not be equipped
with a weapon.

begin insert

begin insert 14352. end insert   

(a) A law enforcement agency shall obtain a warrant
when using an unmanned aircraft system under circumstances
where a warrant is required.

(b) A warrant is not required for the use of an unmanned aircraft
system under circumstances where there is an exception to the
warrant requirement, or under exigent circumstances.

end insert

begin delete SEC. 6. end delete
begin insert SEC. 7. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.