BILL ANALYSIS Ó
SB 15
Page 1
Date of Hearing: July 2, 2013
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 15 (Padilla) - As Amended: June 27, 2013
SUMMARY : Clarifies when a law enforcement agency needs a
warrant to use an unmanned aircraft system (UAS) and that an UAS
cannot be used in a manner to invade a person's privacy.
Specifically, this bill :
1)Makes various findings and declarations relating to the
increasing government, commercial, and recreational use of
UASs, popularly known as "drones," and notes the challenges
that these devices pose to expectations of personal privacy.
2)Clarifies that a person is liable for constructive invasion of
privacy if that person uses an UAS, 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)Provides that the exception to the invasion of privacy
(including constructive invasion) law for lawful activity of a
law enforcement agency or other private or public entities
does not apply to the use of an UAS.
4)Clarifies that using an UAS to unlawfully eavesdrop on a
confidential communication is unlawful.
5)Clarifies that using an UAS to unlawfully spy on the occupant
of a bedroom, bathroom, or other inherently private area is
unlawful.
6)Clarifies that using an UAS to unlawfully spy on a person,
without his or her consent, under or through that person's
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clothes or in a state of full or partial undress, for the
purpose of viewing the body or the person's undergarment and
with the intent of arousing sexual desire of the viewer, under
circumstances or in areas that the person has a reasonable
expectation of privacy is unlawful.
7)Makes it a crime, punishable by a fine of up to $1,000 and/or
imprisonment in jail for up to 3 months, to equip an UAS with
a "weapon," which is defined as any instrument likely to
produce great bodily injury or damage to, or the destruction
of, real or personal property.
8)Requires a law enforcement agency to obtain a search warrant
to use an UAS under circumstances where the subject has a
reasonable expectation of privacy, and allows the warrant to
be issued if that reasonable expectation of privacy is
outweighed by a legitimate public safety interest supported by
probable cause.
9)Specifies that a search warrant is not required where there is
an exception to the search warrant requirement, including
under exigent circumstances.
10)Provides that the search warrant application must specify if
an UAS will be used and the intended purpose for which it will
be used.
11)Provides that a public agency may use an UAS only for
purposes within the scope of that agency's authorized duties
and responsibilities, except that a public agency may use an
UAS within the scope of duties and responsibilities of a
requesting agency pursuant to an interagency request for
mutual assistance.
12)Prohibits a non-law enforcement agency from disseminating or
providing to a law enforcement agency data collected by an
unmanned aircraft operated by the non-law enforcement agency
unless the law enforcement agency has obtained a warrant for
the data based upon probable cause or unless required by law.
13)Requires a public agency, to the extent practicable, to
minimize the collection and retention of data during the
operation of an UAS by the agency.
14)Requires that images, footage, or data obtained by a public
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agency through the use of an UAS, if the collection or access
is authorized by a warrant, be destroyed after one year,
except to the extent it is required as evidence of a crime, as
part of an ongoing criminal investigation, for training
purposes, or pursuant to a court order.
15)Provides that images, footage, or data retained by a public
agency shall be subject to disclosure according to the
California Public Records Act.
16)Requires that the acquisition of an UAS by a local public
agency be subject to reasonable public notice by the
applicable local public agency's legislative body.
17)Requires an UAS operated by a public agency be painted or
labeled in a way that provides high visibility of the UAS.
18)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)Guarantees the right of persons to be free from unreasonable
searches and seizures and that a search warrant may be issued
only 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. (U.S. Const., amend. IV; Cal. Const.,
art. 1, sec. 13.)
2)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).]
3)Provides that a person is liable for constructive invasion of
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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).]
4)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).]
5)States that a search warrant is 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 Section 1523.)
6)Permits a search warrant to be issued for any of the following
grounds:
a) When the property subject to search was stolen or
embezzled;
b) When property or things were used as the means to commit
a felony;
c) When the property or things are in the possession of any
person with the intent to use them as a means of committing
a public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of
concealing them or preventing them from being discovered;
d) When the property or things to be seized consist of any
item or constitute any evidence that tends to show a felony
has been committed, or tends to show that a particular
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person has committed a felony;
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child or possession of matter depicting sexual conduct of a
person under the age of 18 years has occurred or is
occurring;
f) When there is a warrant to arrest a person;
g) When a provider of electronic communication service or
remote computing service has records or evidence, as
specified, showing that property was stolen or embezzled
constituting a misdemeanor, or that property or things are
in the possession of any person with the intent to use them
as a means of committing a misdemeanor public offense, or
in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or
preventing their discovery;
h) When the property or things to be seized include an item
or any evidence that tends to show a violation of a
specified section of the Labor Code, or tends to show that
a particular person has violated that section;
i) When the property or things to be seized include a
firearm or any other deadly weapon at the scene of, or at
the premises occupied or under the control of the person
arrested in connection with, a domestic violence incident
involving a threat to human life or a physical assault, as
specified;
j) When the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of,
specified persons;
aa) When the property or things to be seized include a
firearm that is owned by, or in the possession of, or in
the custody or control of, a person who is subject to the
prohibitions regarding firearms, as specified, if a
prohibited firearm is possessed, owned, in the custody of,
or controlled by a person against whom a specified
protective order has been issued, the person has been
lawfully served with that order, and the person has failed
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to relinquish the firearm as required by law; and,
bb) When the information to be received from the use of a
tracking device constitutes evidence that tends to show
that either a felony, a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code has been committed or is being committed,
tends to show that a particular person has committed a
felony, a misdemeanor violation of the Fish and Game Code,
or a misdemeanor violation of the Public Resources Code, or
is committing a felony, a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code, or will assist in locating an individual
who has committed or is committing a felony, a misdemeanor
violation of the Fish and Game Code, or a misdemeanor
violation of the Public Resources Code. (Penal Code
Section 1524(a).)
7)Requires each application for an order authorizing or
approving the interception of a wire, oral, or electronic
communication be made in writing upon oath or affirmation to a
judge of competent jurisdiction, state the applicant's
authority to make such application, and include the following
information:
a) The identity of the investigative or law enforcement
officer making the application, and the officer authorizing
the application;
b) A full and complete statement of the facts and
circumstances relied upon by the applicant, to justify his
belief that an order should be issued, including:
i) Details as to the particular offense that has been,
is being, or is about to be committed;
ii) A particular description of the nature and location
of the facilities from which or the place where the
communication is to be intercepted, except as specified;
iii) A particular description of the type of
communications sought to be intercepted; and
iv) The identity of the person, if known, committing the
offense and whose communications are to be intercepted;
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c) A full and complete statement as to whether other
investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried
or to be too dangerous;
d) A statement of the period of time for which the
interception is required to be maintained. If the nature of
the investigation is such that the authorization for
interception should not automatically terminate when the
described type of communication has been first obtained, a
particular description of facts establishing probable cause
to believe that additional communications of the same type
will occur thereafter;
e) A full and complete statement of the facts concerning
all previous applications known to the individual
authorizing and making the application, made to any judge
for authorization to intercept, or for approval of
interceptions of, wire, oral, or electronic communications
involving any of the same persons, facilities or places
specified in the application, and the action taken by the
judge on each such application; and,
f) Where the application is for the extension of an order,
a statement setting forth the results thus far obtained
from the interception, or a reasonable explanation of the
failure to obtain such results. (18 United States Code
Section 2518.)
8)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 Section 632.)
9)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 Section 647(j)(1).]
10)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,
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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 Section 647(j)(2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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.
"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."
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2)Fourth Amendment Considerations: Government Searches : Both
the United States and the California constitutions guarantee
the right of all persons to be secure from unreasonable
searches and seizures. (U.S. Const., amend. IV; Cal. Const.,
art. 1, sec. 13.) This protection applies to all unreasonable
government intrusions into legitimate expectations of privacy.
(United States v. Chadwick (1977) 433 U.S. 1, 7, overruled on
other grounds by California v. Acevedo (1991) 500 U.S. 565.)
In general, a search is not valid unless it is conducted
pursuant to a warrant where a person has a reasonable
expectation of privacy. The mere reasonableness of a search,
assessed in light of the surrounding circumstances, is not a
substitute for the warrant required by the Constitution.
(Arkansas v. Sanders (1979) 442 U.S. 753, 758, overruled on
other grounds by California v. Acevedo, supra.) There are
exceptions to the warrant requirement, but the burden of
establishing an exception is on the party seeking one.
[Arkansas v. Sanders (1979) 442 U.S. 753, 760, overruled on
other grounds by California v. Acevedo, supra.]
a) Law Enforcement Use : This bill provides that a law
enforcement agency is required to obtain a search warrant
to use an UAS when the subject of the search has a
reasonable expectation of privacy. This provision of the
bill originally required a law enforcement agency to obtain
a search warrant when using an UAS "under circumstances
where a search warrant is required." This amendment
appears to be an attempt by the author to provide more
precise language of when law enforcement is required to
obtain a search warrant when using an UAS; however, the
provision, as drafted, remains circular and appears to
provide limited guidance. It is presumably left up to the
determination of each law enforcement agency to decide when
a reasonable expectation of privacy exists, which could
lead to incongruent use, or possible misuse, of UASs. With
the lack of clear guidelines, ambiguity will remain
regarding when law enforcement needs a warrant, which could
lead to situations when an UAS was used without a warrant
yet the subject had a reasonable expectation of privacy.
Furthermore, the only check available to determine if an
expectation of privacy is in fact reasonable is by a court
after the UAS has been used and would result in
constitutionally-protected rights being infringed upon if
the court finds that the search required a warrant.
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b) Non-Law Enforcement Public Agency Use : With respect to
non-law enforcement public agencies, this bill provides
that an agency may use an UAS only for purposes within the
scope of that agency's authorized duties and
responsibilities except when the agency receives an
interagency request for mutual assistance. This bill
provides no further guidance as to when a non-law
enforcement public agency can use an UAS. Yet as an arm of
the government, all public agencies are restricted by the
warrant clauses of the United States and California
constitutions and therefore are required to obtain a search
warrant in instances when a person has a reasonable
expectation of privacy. (Cf. United States v. Jacobsen
(1984) 466 U.S. 109, 113.) As expressed by the American
Civil Liberties Union of California (ACLU) in its
opposition letter, "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."
Consequently, this committee may wish to address whether
the provisions in this bill, as drafted, provide adequate
guidelines for non-law enforcement public agencies given
that federal and state warrant requirements apply to all
public agencies.
3)Data Use and Retention : This bill provides that a public
agency operating an UAS shall minimize the collection and
retention of data collected through the use of an UAS to the
extent practicable while requiring images, footage, and data
collected through the authorization of a warrant to be
destroyed after one year, unless a specified condition is met.
The "to the extent practicable" language makes this
collection and retention requirement unclear and could lead to
wide variations among agencies in what data each chooses to
collect and how long it is retained. Furthermore, as argued
by the ACLU, "SB 15 should, but does not, address compelled
government access to information gathered by private actors or
by other governmental actors." The author or this committee
may wish to provide further clarity to the data use and
retention provisions of this bill.
4)Adequacy of State Oversight : This bill does not provide for
approval by the Legislature of a state agency's use or
procurement of UASs, nor does it call for a public notice
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period to allow for public input when an agency proposes to
use the device or for periodic reports as to how agencies have
used UASs, how frequently, and to what effect. A policy
consideration this committee may wish to address is whether
this bill provides adequate public or legislative oversight of
the use of UASs by state agencies.
5)Local Control : This bill provides that the acquisition of an
UAS by a local public agency is subject to reasonable public
notice by the applicable local agency's legislative body, but
it does not appear to allow for any oversight by the
legislative body, particularly as to whether the agency can
use UASs and if so, for what purposes.
In Alameda County, the sheriff attempted to request funding
for an UAS. Ultimately, public backlash and concern led to
the sheriff to abandon his pursuit of the UAS. (Woodall, War
on terror money funding drones, surveillance in the Bay Area,
Oakland Tribune (April 7, 2013).) Contrary to the outcome in
Alameda County, other municipalities, such as the San Mateo
County, San Francisco, and San Jose, have continued their
pursuit of UASs. (Ibid.) As recent events in Alameda County
have shown, use of UASs can be a divisive issue. If the
Alameda County Board of Supervisors, as the elected
representatives of the community, decided that it did not want
UASs used by any agency under its purview, would it be able to
exercise its decision under the provisions of this bill? Or,
if the Board of Supervisors approved the use of UASs by the
county sheriff but wanted to prohibit UASs from being used in
certain instances, for example, to block communication or data
signals of electronic devices, would this bill allow the
county to put in place those restrictions?
6)Weaponized UASs : UASs have the capability of being armed with
weapons, lethal and nonlethal. The United States has used
armed UASs to target militants in military operations abroad.
(Christopher Drew, Drones Are Weapons of Choice in Fighting
Qaeda, New York Times (Mar. 17, 2009).) Domestically, there
has been a push by some law enforcement agencies to arm UASs
to fire rubber bullets and tear gas. (See Drones over US to
get weaponized - so far, non-lethally, RT.com (May 24, 2012).)
This bill prohibits the equipping of an UAS with a weapon,
which is defines as "any instrument likely to produce great
bodily injury or damage to, or the destruction of, real or
personal property." The committee may wish to consider
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whether the definition of weapon in this bill is appropriate
given that UASs could be equipped with weapons that do not
cause great bodily injury (e.g., pepper spray, rubber bullets,
or tear gas).
7)FAA Modernization and Reform Act of 2012 : The federal
government enacted legislation, the "FAA Modernization and
Reform Act of 2012", that, in part, requires the Secretary of
Transportation, in consultation with representatives of the
aviation industry, federal agencies that employ UAS technology
in the national airspace system, and the UAS industry, to
develop a comprehensive plan to safely accelerate the
integration of civil UASs into the national airspace system.
(H.R. 658 2011-12, Section 332.)
8)Argument in Support : None submitted.
9)Argument in Opposition : The American Civil Liberties Union of
California raises the following concerns prompting its
opposition to this bill unless it is amended:
"Lack of guidance as to the issuance of warrants: 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).
"Failure to cover all government actors: 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.
"Data gathered by other entities must not be shared with law
enforcement without a warrant: As private drone use increases,
issues of government access to private or other governmental
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surveillance data will arise. SB 15 should, but does not,
address compelled government access to information gathered by
private actors or by other governmental actors.
?
"Local legislative bodies should be able to adopt more
protective standards than state law: Local legislative bodies
should approve the acquisition of a drone. Further, the bill
should provide that local legislative bodies are authorized to
and indeed must adopt policies governing the use and
deployment of the drone. These two elements are extremely
important and ensure that the local community has input into
this important issue through their elected civilian leaders.
Finally, local governments should be afforded the discretion
to adopt more protective standards if those standards reflect
the will of the local community.
"A data retention and purpose limitation provisions are
needed: Images, footage, or data obtained by a public entity
should not be disseminated outside the collecting agency, and
should not be used for any purpose other than that for which
it was collected. The information should also be permanently
destroyed within 10 days except if retained for training
purposes or if a there has been a warrant authorizing
collection of or access to images."
10)Related Legislation :
a) AB 1326 (Gorell) would provide tax exemptions relative
to the construction of new manufacturing plants and for the
purchase of machinery used to manufacture UASs. AB 1326
was held on the Assembly Appropriations Committee suspense
file.
b) AB 1327 (Gorell) would establish standards for the use
of UASs by public entities and private parties. AB 1327 is
pending in the Assembly Appropriations Committee.
c) AJR 6 (Fox) requests the FAA to consider California as
one of the six planned test sites for UASs and integration
of those systems into the next generation air
transportation system. AJR 6 is pending in the Senate.
REGISTERED SUPPORT / OPPOSITION :
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Support
None
Opposition
American Civil Liberties Union of California
Electronic Frontier Foundation
One private individual
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744