BILL ANALYSIS Ó
SB 15
Page 1
Date of Hearing: June 18, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 15 (Padilla) - As Amended: June 12, 2013
SENATE VOTE : 38-1
SUBJECT : Aviation: Unmanned Aircraft Systems
KEY ISSUES :
1)Should using a drone to capture an image or sound recording of
a person engaged in a personal or familial activity -where
that person has a reasonable expectation of privacy -
constitute a "constructive" invasion of privacy?
2)Do THE PROVISIONS in this bill relating TO criminal invasions
of privacy and warrant requirements change existing law in any
substantive way?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill seeks to create a warrant requirement for the use of
unmanned aircraft systems (popularly known as "drones") and
impose criminal and civil penalties on various forms of the
misuse of drones. Of primary interest to this Committee, the
bill would expand the existing definition of "constructive
invasion of privacy" to include the use of a drone to capture an
image or sound recording of a person engaged in a personal or
familial activity. Under existing law, a defendant is generally
liable for "physical" invasion of privacy if that person
trespasses onto the property of a plaintiff in an attempt to
capture an image or sound recording of the plaintiff engaging in
a personal or familial activity, where the plaintiff has a
reasonable expectation of privacy. A person is liable for
"constructive" invasion of privacy for doing the same by the use
of a visual or auditory enhancing device, even if there is no
physical trespass. This bill would make a person liable for
constructive invasion for attempting to capture the image or
sound recording of a person engaged in a personal or familial
activity, with or without the use of a visual or auditory
SB 15
Page 2
enhancing device. In addition, this bill also makes several
amendments to the Penal Code relating to warrant requirements,
using drones to commit the various privacy-related crimes, such
as eavesdropping, and the equipping of drones with weapons.
These Penal Code sections will no doubt be more fully vetted in
the Public Safety Committee, should the bill move out of this
Committee. However, at least some of the Penal Code would appear
to have little or no effect on existing law. Indeed, opponents
contend that this bill affords too little protection regarding
the warrant issue and that it may only confuse the issue as to
when warrants will be required for drone use. There is no known
registered support for this author-sponsored bill at the time of
this writing.
SUMMARY : Requires law enforcement to obtain a warrant before
using an unmanned aircraft under circumstances that would
require a warrant; specifies that any person who uses a drone to
capture the visual image, sound recording, or other physical
impression of another person, under specified conditions, is
liable for constructive invasion of privacy; and imposes other
restrictions on drone use. Specifically, this bill :
1)Makes various findings and declarations relating to the
increasing government, commercial, and recreational use of
unmanned aircraft systems, popularly known as "drones," and
notes the challenges that these devices pose to expectations
of personal privacy.
2)Provides that a person is liable for constructive invasion of
privacy if that person uses an unmanned aircraft system, as
defined, to attempt 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, 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 unmanned aircraft system was used.
3)Makes it a crime to equip an unmanned aircraft system with a
weapon, as defined.
4)Specifies that using an unmanned aircraft system to unlawfully
eavesdrop on a confidential communication is unlawful.
SB 15
Page 3
5)Specifies that using an unmanned aircraft system to unlawfully
spy on the occupant of a bedroom, bathroom, or other
inherently private area (i.e. a "peeping Tom" violation) is
unlawful.
6)Requires a law enforcement agency to obtain a search warrant
when using an unmanned aircraft system under circumstances
where a search warrant is required, and provides that the
search warrant application must specify that an unmanned
aircraft system will be used and the intended purpose in using
it. Specifies that a search warrant is not required where
there is an exception to the search warrant requirement.
7)Defines "unmanned aircraft system" to mean 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 :
1)Provides that a person is liable for physical invasion of
privacy when that person knowingly enters onto the land of
another person without permission, or otherwise commits a
trespass, in order to physically invade the privacy of the
other person with the intent to capture a visual image, sound
recording, or other physical impression of the other 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 Section 1708.8 (a).)
2)Provides that a person is liable for constructive invasion of
privacy when that 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 a 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, 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. (Civil Code Section 1708.8 (b).)
SB 15
Page 4
3)Provides that the above provisions do not apply to the
otherwise lawful activity of a law enforcement agency or other
governmental entity that, in the course of an investigation or
surveillance, has an articulable suspicion that capturing the
image or sound recording will produce evidence of suspected
illegal activity or other misconduct. (Civil Code Section
1708.8 (g).)
4)Provides that any person who, intentionally and without the
consent of all parties to a confidential communication, by
means of any electronic amplifying or recording device,
eavesdrops upon or records a confidential communication shall
be punished by a fine or imprisonment, or both fine and
imprisonment. Specifies that no evidence obtained by unlawful
eavesdropping shall be admissible in any judicial,
administrative, legislative, or other proceeding, except as
proof of evidence of eavesdropping. (Penal Code Section 632.)
5)Provides that any person who looks through a hole or opening
or otherwise views, by means of any instrumentality, the
interior of a bedroom, bathroom, changing room, fitting room,
dressing room, 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 the person or persons inside,
is guilty of misdemeanor disorderly conduct. (Penal Code
Section 647 (j).)
6)Guarantees the right of persons to be free of unreasonable
searches and seizures and generally 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. (Amendment IV of the
United States Constitution; Article I Section 13 of the
California Constitution; Penal Code Sections 1523 to 1542.)
7)Provides, under the Federal Aviation Administration
Modernization and Reform Act of 2012, for the regulation of
unmanned aircraft systems and their eventual integration into
the national airspace system. (49 USC Section 106.)
COMMENTS : The technology of "unmanned aircraft systems" -
commonly referred to as "drones" - has advanced significantly in
recent years, so much so that the recently signed Federal
SB 15
Page 5
Aviation Administration Modernization and Reform Act of 2012
calls for fully integrating drones into the national airspace
system by September 30, 2015. Although originally developed for
military uses, drone manufacturers are now targeting private
buyers and local law enforcement agencies. Manufacturers
especially tout the "obvious benefits" for local law enforcement
and public safety agencies, claiming that drones have the
capability to "be used for everything from examination of crime
scenes to search and rescue." (See "Public Safety Market Offers
Growth for UAVs," Aerospace America, March 2013.)
According to the author, while there are many legitimate
proposed uses for drones, their widespread use "creates the
potential for misuse and presents direct challenges to the
privacy and due process rights of Californians." This bill,
according to the author, is intended to "reinforce current
protections for privacy by explicitly extending privacy
standards and existing warrant requirements to the use of
drones." Specifically, the bill amends a number of civil and
criminal provisions to expressly include various uses of drones
and makes it a crime to attach a weapon to a drone. In
addition, the bill adds a new title to the Penal Code that
requires law enforcement to obtain a warrant before using a
drone, under circumstances where a warrant would be required,
and requires the application for the warrant to specify that a
drone will be used and for what intended purpose.
Background: Privacy Rights in California . Unlike the United
States Constitution, which has been held to recognize a "right
to privacy" in the "penumbra" of the various amendments to the
Bill of Rights, the California Constitution expressly guarantees
a right of privacy; moreover, it guarantees this right against
both private and public actors. The California Supreme Court
has held that the privacy provision in the California
Constitution "creates a legal and enforceable right of privacy
for every Californian." (White v. Davis (1975) 13 Cal. 3d 757,
775.) Despite this express protection, however, just what is
included in the state's constitutional right to privacy has
necessarily been developed in a body of case law. These cases
tend to be very fact-specific. As a general rule, however, in
order to maintain a claim for infringement of one's right of
privacy under the California Constitution, the plaintiff must
(1) identify a legally protected privacy interest; (2) establish
that he or she had a "reasonable expectation of privacy" under
the circumstances; and (3) that the defendant's conduct
SB 15
Page 6
constituted a "serious" invasion of privacy. If a plaintiff
establishes all three of these elements, the defendant may still
show the invasion of privacy was justified if it furthers a
legitimate and competing interest. (Hill v. National Collegiate
Athletic Association (1994) 7 Cal. 4th 1, at 39-40.)
In addition to these broad constitutional principles, California
law also imposes both civil and criminal liability for invasions
of privacy. Under common law tort principles, state law imposes
civil liability for four kinds of invasion of privacy: (1)
Intrusion upon the plaintiff's seclusion or solitude or into his
or her private affairs; (2) Public disclosure of private facts
about the individual; (3) Publicity that places the plaintiff in
a false light in the public eye; and (4) Misappropriation, for
the defendant's advantage, of a person's name or likeness. (5
Witkin, Summary of Cal. Law (10th ed.) Torts, Section 651.) In
addition to these common law torts, California statutes - both
civil and criminal - make certain conduct either actionable or
unlawful invasions of privacy. For example, Civil Code 1708.8
(which is amended by this bill) makes attempting to capture the
image of a person engaged in a personal or familial activity
subject to liability for either physical or "constructive"
invasion of privacy, depending on the nature of intrusion. In
addition, several sections of the Penal Code make certain
invasions of privacy, including unauthorized wiretapping,
electronic eavesdropping, intercepting cellular phone
communications, and electronic tracking of individuals, a
criminal offense. (Penal Code Section 630 et seq.)
Logically Extending the "Constructive Invasion of Privacy"
Statute to Drone Use . Of primary interest to this Committee,
this bill would expand the existing definition of "constructive
invasion of privacy" to include the use of a drone to capture an
image or sound recording of a person engaged in a personal or
familial activity - presuming it is done in a manner that a
reasonable person would find offensive and under circumstances
where the subject has a reasonable expectation of privacy.
Under existing law, a defendant is generally liable for a
"physical" invasion of privacy if that person trespasses onto
the property of a plaintiff to capture an image or sound
recording of the plaintiff engaging in a personal or familial
activity. A person is liable for "constructive" invasion of
privacy if the defendant does the same, without a physical
trespass, but by the use of a visual or auditory enhancing
device.
SB 15
Page 7
This bill would make a person liable for constructive invasion
of privacy for attempting to capture the image or sound
recording of a person engaged in a personal or familial activity
if that person uses a drone, with or without the use of a visual
or auditory enhancing device. This provision of the bill seems
consistent with the intent of the existing constructive invasion
of privacy statute. That statute recognizes that even though a
person may not commit a physical trespass onto the plaintiff's
property to capture a visual image or sound recording, that
person could achieve the same effect by using technology that
can photograph or record someone from a distance, even if there
is no physical trespass on the plaintiff's property. To the
extent that a small, silent drone could be used to
surreptitiously capture that same image, even without committing
a physical trespass, it seems reasonable to conclude that use of
a drone could also create liability for constructive invasion of
privacy. It should be stressed that this bill would not
automatically make the use of a drone to capture an image or
sound recording a constructive invasion of privacy per se; the
invasion would still need to be done in a manner that was
offensive to a reasonable person and under circumstances where
the subject had a reasonable expectation of privacy. This bill
effectively says that, for purposes of assessing liability, the
use of a drone is the functional equivalent of the use of a
visual or auditory enhancing device.
Warrant Provisions Need More Clarification : While the Civil
Code provisions in this bill are of greatest interest to this
Committee, the provisions that amend the Penal Code, and in
particular those which set forth warrant requirements for the
use of drones, raise fundamental constitutional privacy issues
that also fall within the jurisdiction of this Committee. This
bill seeks to protect constitutional privacy rights by requiring
law enforcement to obtain a search warrant before using a drone.
However, this provision, as currently drafted, may not yet
reach the author's stated objective. That is, the bill in print
states that law enforcement must obtain a search warrant if it
uses the drone "under circumstances where a search warrant is
required." But if circumstances already require a warrant, then
it would appear that a warrant would already be required whether
a drone was used or not. Thus the Committee may wish to ask the
author to discuss his openness in clarifying the scope of the
warrant requirement. As noted in the opposition section below,
the ACLU opposes this bill because it believes that it "merely
SB 15
Page 8
codifies existing uncertainty" about when a warrant will be
required. ACLU proposes a bright line rule that law enforcement
must always seek a warrant to use a drone unless there are
exigent circumstances or unless some other recognized exemption
to the warrant requirement applies.
Other Penal Code Provisions Do Not Appear to Change Existing
Law : In addition to the warrant requirement, this bill would
expressly extend other criminal provisions that protect privacy
in order to encompass the use of drones. However, as with the
warrant requirements, it is not clear that these amendments
actually change existing law. For example, existing law makes
it a crime to eavesdrop - that is, to intentionally listen to or
record a confidential communication, without the consent of the
parties involved in the communication, by means of any
electronic amplifying or recording device. This bill would say
that it is crime to do so with such a device attached to a
drone. But if the essential element of the crime is the use of
the electronic amplifying or recording device, then using such a
device is a crime whether the device is attached to a drone or
not.
Assembly Public Safety Committee May Address the Penal Code
Sections Needing Clarification : Because this bill will be heard
by the Public Safety Committee if it moves out of this Committee
- and because the author is continuing to work with the
opposition to address some of its concerns - the Committee might
recommend that the author work with the Public Safety Committee
to address some of the circularity in the Penal Code sections.
ARGUMENTS IN SUPPORT : According to the author, the
"proliferation of widespread drone-use raises privacy concerns.
Provisions are needed to ensure that private citizens, public
agencies, and law enforcement are operating drones within
balanced parameters in the interest of privacy." The author
concedes that in many instances drone use may be "legitimate,"
but he believes that there is nonetheless "the potential for
misuse" and that widespread drone use will present "direct
challenges to the privacy and due process rights of
Californians." The author adds that both "public and private
operators of drones have a responsibility not to infringe on the
rights, property, or privacy of 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."
SB 15
Page 9
ARGUMENTS IN OPPOSITION (UNLESS AMENDED) : The ACLU opposes this
bill unless it is significantly amended to create more robust
privacy protections. Specifically, the ACLU identifies the
following problems and suggests corresponding amendments:
The bill provides no guidance as to when warrants may be
issued. ACLU notes that SB 15 "merely codifies existing
uncertainty" by only requiring a warrant under circumstances
that would require a warrant. ACLU recommends that law
enforcement always obtain a warrant unless there are exigent
circumstances or some recognized exemption applies.
ACLU suggests that the bill should, consistent with the Fourth
Amendment, cover all government actors and agencies, not just
law enforcement.
ACLU seeks an amendment stating that data gathered by other
agencies not be shared with law enforcement without a warrant.
ACLU adds that the bill says nothing about whether law
enforcement may compel access to information gathered by
private actors or other government agencies.
ACLU also seeks amendments to require that local legislative
bodies must approve the acquisition of a drone. ACLU also
believes that local legislative bodies should have the option
of adopting stricter limitations on the use of drones.
ACLU recommends that all data collected should be destroyed
after ten days, or some other reasonable period of time,
unless it is necessary for training purposes, an ongoing
investigation, or if the collection of the data was authorized
by a warrant.
ACLU also objected to an earlier version of the Civil Code
provision on constructive invasion of privacy; however, it is
not clear if the ACLU still opposes this section in light of
the most recent amendments to these provisions.
Related Pending Legislation : AB 1327 (Gorell) would generally
prohibit public agencies from using unmanned aircraft systems,
with certain exceptions applicable to law enforcement agencies
and in certain other cases. The bill would require a warrant
for the use of an unmanned aircraft system by law enforcement to
block or interfere with electronic communications, as specified,
SB 15
Page 10
with certain exceptions. The bill would require the acquisition
of an unmanned aircraft system to be authorized by a local
public agency, as specified. The bill would require a state
agency that uses an unmanned aircraft system, or contracts for
the use of an unmanned aircraft system, to provide, no later
than January 1 of each year, an annual report to the Governor
that includes the agency's acquisitions, purchases, rentals, or
leases of unmanned aircraft systems. This bill was held by the
Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
American Civil Liberties Union
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334