BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 15 (Padilla)
As Amended April 1, 2013
Hearing Date: April 16, 2013
Fiscal: Yes
Urgency: No
BCP
SUBJECT
Aviation: Unmanned Aircraft Systems
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 clarify that a constructive invasion of privacy
may occur through the use of a device affixed to or contained
within an unmanned aircraft system, as defined. This bill would
similarly amend criminal prohibitions relating to eavesdropping
and privacy to include the use of devices affixed to or
contained within an unmanned aircraft system.
This bill would additionally prohibit unmanned aircraft systems
from being equipped with a weapon.
BACKGROUND
An unmanned aerial vehicle (commonly referred to as a "drone")
is an aircraft without a human pilot that is either remote
controlled or fully automated. Unmanned vehicles have been used
for over a century, but, due to advances in technology, are
generating renewed concerns due to increased prevalence and
capability. As noted in a September 10, 2012 report from the
Congressional Research Service entitled Pilotless Drones:
(more)
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Background and Considerations for Congress Regarding Unmanned
Aircraft Operations in the National Airspace System:
Growing interest in the use of unmanned aerial vehicles
(UAVs), particularly for homeland security and law
enforcement applications, has spurred considerable debate
over how to accommodate these unmanned aircraft and keep
them safely separated from other air traffic. Additionally,
the use of these pilotless aircraft, popularly referred to
as drones, for aerial surveillance and law enforcement
purposes has raised specific concerns regarding privacy and
Fourth Amendment rights and potential intrusiveness. These
issues have come to the forefront in policy debate in
response to provisions in the FAA Modernization and Reform
Act of 2012 (P.L. 112-95) that require the Federal Aviation
Administration (FAA) to begin integrating unmanned aircraft
into the national airspace system by the end of FY2015.
While drones have been used extensively by the military and
small radio-controlled model aircraft have been around for
more than 50 years, advances in more complex vehicle
controls and imaging sensor capabilities are spurring public
sector and commercial interest in unmanned aircraft for a
variety of purposes, including law enforcement, homeland
security, aerial imaging, and scientific research. FAA
currently approves public entities (such as federal
agencies, public universities, and local police departments)
to operate UAVs on a case-by-case basis, but growing
interest is making this approach increasingly untenable.
Moreover, commercial users are seeking authorization to fly
drones, but so far FAA has only allowed test and
demonstration flights by manufacturers. FAA faces a number
of challenges to address anticipated growth in demand for
civilian UAV operations and develop regulations governing
the certification and operation of unmanned aircraft systems
in domestic airspace.
Although there are only a relatively small number of drones in
domestic use at the moment, the FAA's Aerospace Forecast for
Fiscal Years 2010-2030 notes that ". . . as the technology
matures, increasing numbers of units will be operated by civil
and commercial users, and could have greater impacts on the
[National Airspace System]. However the volume of units is
relatively small - approximately 15,000 units by 2020 and 30,000
units by 2030." In response to the anticipated increase in use
of drones in California, this bill would update several civil
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and criminal laws relating to privacy to expressly apply to
drones (referred to in the bill as unmanned aircraft systems to
cover the aircraft itself plus associated elements).
CHANGES TO EXISTING LAW
1. Existing federal law , the Aviation Administration
Modernization and Reform Act of 2012, requires the Secretary
of Transportation to develop a comprehensive plan to safely
accelerate the integration of civil unmanned aircraft systems
into the national airspace system. The plan is required to
provide for the safe integration of civil unmanned aircraft
systems into national airspace as soon as practicable, but not
later than September 30, 2015. (112 P.L. 95, 332.)
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 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 provides that a person who commits an invasion of
privacy for a commercial purpose shall, in addition to any
other damages or remedies provided, be subject to disgorgement
to the plaintiff of any proceeds or other consideration
obtained as a result of the violation of this section.
Existing law defines "commercial purpose" to mean any act done
with the expectation of sale, financial gain, or other
consideration. (Civ. Code Sec. 1708.8 (d), (k).)
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This bill would clarify that a "constructive invasion of
privacy" may occur through the use of a device affixed to or
contained within an unmanned aircraft system, as defined.
This bill would define "unmanned aircraft system" as an
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.
2. 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. (Pen. Code Sec. 632.)
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. (Pen. Code Sec. 647 (j)(1).)
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. (Pen. Code Sec. 647 (j)(2).)
This bill would, under the above-referenced 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.
This bill would also provide that an unmanned aircraft system
may not be equipped with a weapon.
3. This bill would make findings and declarations regarding:
(1) the advancement of technology; (2) the Federal Aviation
Administration Modernization and Reform Act of 2012; (3) that
privately and publicly operated unmanned aircraft present new
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challenges to the privacy and due process rights of
Californians; and (4) that operators of unmanned aircraft have
a responsibility not to infringe on the right of citizens.
This bill would further state the intent of the Legislature to
enact legislation that would establish appropriate standards
for the use of unmanned aircraft systems in California.
COMMENT
1. Stated need for the bill
According to the author:
Unmanned [Aircraft] Systems (UAS) have been used to
supplement various governmental operations due to their cost
effectiveness. As a result, there has been increased public
concern over the potential intrusive use of unmanned aerial
systems by private citizens, law enforcement, and other
public agencies.
The author further asserts that SB 15 establishes standards of
use for unmanned aerial systems by extending current
provisions governing a constructive invasion of privacy to
cover the use of a UAS, extending current provisions governing
eavesdropping to the use of a UAS for the purposes of
eavesdropping, and prohibiting an unmanned aerial system from
being equipped with weapons.
2. Invasion of privacy
This bill seeks to ensure that the use of unmanned aircraft
systems (drones) in a manner that invades the privacy of a
person would qualify as a "constructive invasion of privacy."
As background, California's codified "invasion of privacy"
statute protects against both a physical invasion of privacy and
a constructive invasion of privacy. A physical invasion of
privacy occurs when a person trespasses on the land of another
with the intent of capturing a physical impression (image or
sound recording) of the plaintiff engaging in a personal or
familial activity, and, the physical invasion occurs in a manner
that would be offensive to a reasonable person. On the other
hand, a constructive invasion of privacy occurs when a person
attempts to capture, in an offensive manner, any type of
physical impression (image or sound recording) under
circumstances where the plaintiff had a reasonable expectation
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of privacy, through the use of a visual or auditory enhancing
device. This bill would clarify that an enhancing device
includes a device affixed to or contained within an unmanned
aircraft system.
From a policy standpoint, if drones do proliferate as expected,
it is important to ensure that the use of these small aircraft
to spy or eavesdrop on an individual could be considered a
constructive invasion of privacy. For example, if a person used
a drone equipped with a digital camera to take photos of their
neighbor in the privacy of their secluded backyard, it is
essential to clarify that the neighbor may be able to bring an
action for a constructive invasion of privacy if the other
elements of the statute are met. In other words, it is
important to recognize, as this bill does, that the use of a
visual or auditory enhancing device may include such a device
attached to a drone.
It should be noted that, under existing law, a constructive
invasion of privacy could result in liability for up to three
times the amount of any general and special damages, punitive
damages, and civil fines, as specified. Since a violation would
only occur if a person attempts to capture a physical impression
(image or sound recording) in a manner that is offensive to a
reasonable person (and where the victim had a reasonable
expectation of privacy), the liability provisions of existing
law would arguably not be triggered by a person who accidentally
happens to capture an image of their neighbors' backyard when
flying a remote controlled aircraft equipped with a digital
camera.
3. Unmanned aircraft systems
This bill would use the term "unmanned aircraft systems," as
defined, to reference what are commonly known as drones. That
term, also used by the Federal Aviation Administration (FAA),
would be defined to include the unmanned aircraft itself (the
drone) and the associated elements (which include the components
that control the aircraft). Regarding the types of aircraft
that may be considered unmanned aircraft systems, the FAA's fact
sheet notes:
Unmanned Aircraft Systems (UAS) come in a variety of shapes
and sizes and serve diverse purposes. They may have a
wingspan as large as a Boeing 737 or smaller than a
radio-controlled model airplane. Regardless of size, the
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responsibility to fly safely applies equally to manned and
unmanned aircraft operations.
Because they are inherently different from manned aircraft,
introducing UAS into the nation's airspace is challenging
for both the FAA and aviation community. UAS must be
integrated into a National Airspace System (NAS) that is
evolving from ground-based navigation aids to a GPS-based
system in NextGen. Safe integration of UAS involves gaining
a better understanding of operational issues, such as
training requirements, operational specifications and
technology considerations.
Although not always thought of when the word "drone" is used,
hobby-size airplanes and helicopters that are equipped with
digital cameras are becoming more and more affordable for the
average consumer. Those hobby aircraft may be used for pure
novelty, surveying one's yard, or even checking to see the
condition of a roof. While this bill would not prohibit or
restrict the use of those aircraft, it would ensure that a
malicious party who uses such an aircraft to constructively
invade the privacy of another may be held liable under
California's "invasion of privacy" statute. With respect to the
treatment of model aircraft as an unmanned aircraft system, the
FAA has issued the following clarification:
The current FAA policy for UAS operations is that no person
may operate a UAS in the National Airspace System without
specific authority. For UAS operating as public aircraft the
authority is the [Certificate of Waiver or Authorization],
for UAS operating as civil aircraft the authority is special
airworthiness certificates, and for model aircraft the
authority is AC 91-57 [(the model aircraft operating
standards)].
The FAA recognizes that people and companies other than
modelers might be flying UAS with the mistaken understanding
that they are legally operating under the authority of AC
91-57. AC 91-57 only applies to modelers, and thus
specifically excludes its use by persons or companies for
business purposes.
4. Double referral to Senate Committee on Public Safety
In addition to including the use of unmanned aircraft systems in
the definition of a constructive invasion of privacy under the
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Civil Code, this bill would amend several prohibitions relating
to eavesdropping to similarly include the use of drones in the
Penal Code. Those prohibitions make it a crime for a person to
eavesdrop on a confidential communication by use of an
electronic device, to look through a hole or opening into an
area where an occupant has a reasonable expectation of privacy,
and to use a concealed camera to secretly record a person where
the person has a reasonable expectation of privacy, as
specified.
This bill would additionally prohibit an unmanned aircraft
system from being equipped with a weapon. Although some toy
aircraft do come equipped with soft projectiles that can be
launched remotely, presumably the term "weapon" is not intended
to apply to toys.
This bill has been double-referred to the Senate Committee on
Public Safety for further review of the above provisions.
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation :
AB 1326 (Gorrell) would, among other things, provide an
exemption from specified taxes related to unmanned aerial
vehicles, as specified. This bill is in the Assembly Committee
on Revenue and Taxation.
AB 1327 (Gorrell) would generally prohibit public agencies from
using unmanned aircraft systems, or contracting for the use of
unmanned aircraft systems, as specified. This bill is in the
Assembly Committee on Public Safety.
AJR 6 (Fox) would urge the FAA to consider California as one of
the six test sites for unmanned aircraft systems and urge
integration of those systems into the next generation air
transportation system. This bill is set for hearing on April
15th in the Assembly Committee on Transportation.
Prior Legislation : None Known
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