BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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5
SB 15 (Padilla)
As Amended April 22, 2013
Hearing date: April 30, 2013
Civil and Penal Codes
MK:mc
AVIATION:
UNMANNED AIRCRAFT SYSTEMS
HISTORY
Source: Author
Prior Legislation: None
Support: Unknown
Opposition:Electronic Frontier Foundation (unless amended);
American Civil Liberties Union (unless amended)
KEY ISSUES
SHOULD LAW ENFORCEMENT BE REQUIRED TO OBTAIN A SEARCH WARRANT TO USE
AN UNMANNED AIRCRAFT SYSTEM WHEN A WARRANT WOULD HAVE TO BE OBTAINED
TO DO THE SAME THING WITHOUT THE UNMANNED AIRCRAFT SYSTEM?
SHOULD PROVISIONS CRIMINALIZING EAVESDROPPING AND PEEPING INCLUDE
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PROHIBITIONS TO USE AN UNMANNED AIRCRAFT SYSTEM TO COMMIT THE ACT?
PURPOSE
The purpose of this bill is to require a warrant when law
enforcement uses an unmanned aircraft system and to clarify that
an unmanned aircraft system cannot be used in a manner which
would invade a person's privacy.
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 safe
integration of civil unmanned aircraft systems into national
airspace as soon as practicable, 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. (Civil Code § 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
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trespass unless the visual or auditory enhancing device was
used. (Civil Code § 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. (Civil Code §
1708.8 (d)(k).)
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.
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. (Penal Code § 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. (Penal Code § 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
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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. (Penal Code § 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.
The U.S. Constitution provides that "the right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched and the persons or things to be seized." (4th
Amendment of the U.S. Constitution.)
The California Constitution provides that "the right of the
people to be secure in their persons, houses, papers and effects
against unreasonable seizures and searches may not be violated;
and a warrant may not issue except on probable cause, supported
by oath or affirmation, particularly describing the place to be
searched and the persons and things to be seized." (Article I,
Section 13 of the California Constitution.)
Existing law defines a "search warrant" as an order in writing
in the name of the People, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Penal Code § 1523.)
This bill provides that an application for a search warrant
shall specify whether an unmanned aircraft system will be used
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in the execution of a search warrant and the intended purpose
for the warrant.
This bill provides that a law enforcement agency shall obtain a
warrant when using an unmanned aircraft system under
circumstances where a warrant is required.
This bill provides that 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.
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
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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
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the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
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whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
In February 2012, the President signed the Federal
Aviation Administration Modernization and Reform Act of
2012. Part of this law calls for the integration of
civil unmanned aircraft systems, commonly known as
drones, into the national airspace system by September
30, 2015.
FAA policies provide for two classes of commercial use
of drones. The FAA requires public agencies to obtain
a Certificate of Waiver or Authorization prior to
deploying a drone within the National Airspace System
which is airspace above 400 feet from ground level.
Currently, the FAA only provides recommendations for
operating model aircraft under 400 feet in an Advisory
Circular (AC 91-57). There is no law to regulate
drones operating in airspace below 400 feet, where most
use of drones is considered.
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There is a broad spectrum of proposed applications for
drones. While these applications may be legitimate,
the widespread use of drones creates the potential for
misuse and presents direct challenges to the privacy
and due process rights of Californians.
SB 15 would reinforce current protections for privacy
by explicitly extending privacy standards and existing
warrant requirements to the use of drones.
Both public and private operators of drones 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.
2. 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 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
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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.
3. Eavesdropping and Peeping
Existing law makes eavesdropping by means of recording device a
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wobbler. Existing law makes looking through a periscope,
telescope, binoculars, camera, motion picture camera, camcorder
or mobile phone into the interior of a bedroom, et cetera, where
the person has a reasonable expectation of privacy or using a
concealed camera to record under the clothing of an individual,
a misdemeanor. This bill would make using a "drone" to do any
of these things also a violation of those sections.
While adding "drones" to these sections does expand the scope of
a crime, it is possible that a drone equipped with a camera or
recording device could already be considered to be covered by
current law; thus, this bill arguably would clarify the law.
4. Warrants
As the technology for "drones" advances, law enforcement has and
will continue to seek ways technology can assist them. The
issue that arises when law enforcement and other governmental
agencies use of drones is how and when they should be used and
when a warrant should be necessary for their use. This bill
seeks to clarify that law enforcement should seek a warrant to
use a drone when performing an activity where a warrant would be
needed if a drone were not used. At least one law review
article on the issue suggests that current 4th Amendment
jurisprudence would be applicable to "drones" concluding, in
part:
The Fourth Amendment has served us well since its
ratification in 1791, and there is no reason to suspect
it will be unable to do so in a world where unmanned
aircraft are widely used. (Villasenor, John,
Observations From Above: Unmanned Aircraft Systems and
Privacy Harvard Journal of Law and Public Policy
Vol.36, page 457, 461.)
By providing that a warrant is necessary when governmental
agency uses a drone in circumstances that would ordinarily
require a warrant, the author is intending to make it clear that
the Fourth Amendment should be considered when using this
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advancing technology.
a. When Warrants are Required
The ACLU and the Electronic Frontier Foundation argue that the
current language in this bill provides a lack of guidance on
warrants. Specifically, they state:
SB 15 requires warrants for law enforcement use of
drones, but provides no guidance as to when
warrants are required. Thus, SB 15 merely codifies
existing uncertainty about drone use, preserves law
enforcement discretion without improving the
public's privacy protections, and largely negates
SB 15's stated intent to protect privacy and to
establish standards for drone use. To protect
individual's reasonable expectation of privacy from
a technology that gives no warning of its presence,
we strongly suggest that law enforcement obtain a
warrant unless there are exigent circumstances (or
other recognized exceptions to the warrant
requirement).
The language in the bill is somewhat vague and as currently
drafted may not get to the author's intent. When redrafting,
the author may want to consider language to clarify when a
warrant should be sought.
b. Other Government Agencies
As drafted currently, this bill only addresses law enforcement's
use of a drone, not use by any other governmental agency. This
concerns the ACLU and the Electronic Frontier Foundation.
Specifically, they note:
SB 15 only covers "law enforcement" use of drones.
Constitutional provisions such as the Fourth
Amendment, the state constitutional right of
privacy and the First Amendment apply to all
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government actors, not just law enforcement
agencies; any public agency might use drones for
surveillance and violate Californians' rights.
SHOULD THE AUTHOR AMEND THIS BILL TO ADDRESS USE BY OTHER
GOVERNMENTAL AGENCIES?
c. Data
The ACLU and Electronic Frontier Foundation would like the bill
to be amended to clarify governments should not be able to
compel private drone users to turn over data that they
accumulate.
SHOULD THE BILL BE AMENDED TO CLARIFY THAT INFORMATION
GATHERED BY PRIVATE DRONE USERS MAY NOT BE REQUIRED TO BE
TURNED OVER TO THE GOVERNMENT?
d. Local Control?
The ACLU and Electronic Frontier Foundation argue that the bill
should be clarified to require local approval before drones are
used by law enforcement or other agencies and that the locals
can create stricter standards for their use.
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SHOULD THE LAW REQUIRE LOCAL APPROVAL BEFORE LAW ENFORCEMENT OR
OTHER LOCAL GOVERNMENTAL AGENCIES CAN USE A DRONE?
e. Data Retention
The ACLU and Electronic Frontier Foundation would like to have
limits placed on how long law enforcement can retain data
collected by drones that is not part of an active investigation.
SHOULD LAW ENFORCEMENT BE REQUIRED TO DESTROY DATA COLLECTED?
5. Civil Invasion of Privacy
This bill seeks to ensure that the use of 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 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
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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.
This bill was heard in Senate Judiciary Committee on April 16,
2013, and passed out on a vote of 5-1.
6. Related Legislation
AB 1327 (Gorrell) which passed Assembly Public Safety on April
23 with a vote of 4-2 and is currently in Assembly Local
Government also addresses drone use. The April 18 version of
the bill among other things, prohibits use of drones by public
agencies with some exceptions. That bill also contains some of
the recommendations by the ACLU and the Electronic Frontier
Foundation regarding local control and data retention.
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