BILL ANALYSIS Ó
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THIRD READING
Bill No: SB 15
Author: Padilla (D), et al.
Amended: 5/24/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-1, 4/16/13
AYES: Evans, Corbett, Jackson, Leno, Monning
NOES: Anderson
NO VOTE RECORDED: Walters
SENATE PUBLIC SAFETY COMMITTEE : 6-1, 4/30/13
AYES: Hancock, Block, De León, Knight, Liu, Steinberg
NOES: Anderson
SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/23/13
AYES: De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg
SUBJECT : Aviation: unmanned aircraft systems
SOURCE : Author
DIGEST : This bill (1) defines "constructive invasion of
privacy," (2) defines "unmanned aircraft system (UAS)," (3)
applies existing civil and criminal law to prohibited activities
with devices or instrumentalities affixed to, or contained
within a UAS, (4) provides that a UAS may not be equipped with a
weapon, (5) provides that an application for a search warrant
shall specify whether a UAS will be used in the execution of a
search warrant and the intended purpose of the warrant, (6)
provides that a law enforcement agency shall obtain a search
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warrant when using a UAS under circumstances where a warrant is
required, (7) makes various findings and declarations regarding
this technology, future state and federal policy formation and
privacy rights.
ANALYSIS :
Existing law:
1.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.)
2.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.)
3.Requires the Secretary of Transportation to develop a
comprehensive plan to safely accelerate the integration of
civil UAS into the national airspace system. The plan is
required to provide for safe integration of civil UAS into
national airspace as soon as practicable, no later than
September 30, 2015. (112 P.L. 95, 332.)
4.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 Sec. 1708.8
(a).)
5.Makes a person liable for "constructive invasion of privacy"
for attempting to capture, in a manner highly offensive to a
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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.
(Civil Code Sec. 1708.8 (b).)
6.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.
7.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.
8.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 Sec. 647 (j)(1).)
9.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. (Penal Code Sec. 647 (j)(2).)
10.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/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 Sec. 1523.)
This bill:
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1.Clarifies that a "constructive invasion of privacy" may occur
through the use of a device affixed to or contained within a
UAS, as defined.
2.Defines "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.
3.Provides that under Penal Code Sec. 647 (j)(2) engaging in the
prohibited activities with devices or instrumentalities
affixed to or contained within a UAS is included within the
prohibitions.
4.Provides that a UAS may not be equipped with a weapon.
5.Provides that equipping UAS with a weapon is punishable by a
fine not exceeding $1000, or by imprisonment in the county
jail not exceeding three months, or by both fine and
imprisonment.
6.Provides that an application for a search warrant shall
specify whether a UAS will be used in the execution of a
search warrant and the intended purpose for the warrant.
7.Provides that a law enforcement agency shall obtain a warrant
when using a UAS under circumstances where a warrant is
required. It further requires the application for a search
warrant specify the intended purpose for which the UAS will be
used.
8.Provides that a warrant is not required for the use of a UAS
under circumstances where there is an exception to the warrant
requirement or under exigent circumstances.
9.Makes 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
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a responsibility not to infringe on the right of citizens.
Background
Unmanned Aircraft Systems:
This bill uses 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 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 does not prohibit or
restrict the use of those aircraft, it ensures 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 a UAS, the FAA has issued the following
clarification:
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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.
Eavesdropping and Peeping:
Existing law makes eavesdropping by means of recording device a
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.
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
clarifies 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
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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.)
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Potential minor future increased costs (General Fund*)
to the courts to the extent the provisions of this bill
result in increased civil and criminal filings.
Potential minor increase in felony convictions to state
prison for violations of the wobbler offense of
eavesdropping by means of a recording device. To the
extent more than one felony conviction occurs in any one
year, costs will be in excess of $50,000 (General Fund).
Potential increase in local incarceration costs (Local)
to the extent additional misdemeanor convictions result
from the provisions of this bill.
Non-reimbursable local enforcement costs, offset to a
degree by fine revenue.
OPPOSITION : (Verified 5/24/13)
ACLU
Electronic Frontier Foundation
ARGUMENTS IN SUPPORT : According to the author's office:
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
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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.
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 reinforces 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.
ARGUMENTS IN OPPOSITION : The ACLU and Electronic Frontier
Foundation 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 government actors, not just law
enforcement agencies; any public agency might use drones
for surveillance and violate Californians' rights.
Further, these two groups 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,
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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).
AL:ej 5/24/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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