BILL ANALYSIS Ó AB 856 Page 1 Date of Hearing: April 7, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 856 (Calderon) - As Introduced February 26, 2015 PROPOSED CONSENT (As Proposed to be Amended) SUBJECT: Physical Invasion of privacy KEY ISSUE: Should an existing statute that makes a person liable for "PHYSICAL invasion of privacy" by entering onto the land of another person in order to capture any type of visual image, recording, or impression be expanded so that a person would BE liable for physical invasion of privacy BY ENTERING INTO THE AIRSPACE ABOVE THE LAND OF ANOTHER PERSON in order TO CAPTURE THOSE IMAGES, RECORDINGS, or impressions? SYNOPSIS This bill seeks to curtail the sometimes aggressive conduct of the paparazzi. Several similar bills have come before this Committee in recent years, most of which have tried in one way or another to draw a line between the inappropriate behavior of the most aggressive paparazzi, on the one hand, and reasonable and legitimate newsgathering efforts, on the other. This bill would make one minor change to existing law governing physical invasion of privacy. While current law makes a person liable AB 856 Page 2 for "physical" invasion of privacy for knowingly entering onto the land of another person without permission in order to capture any type of visual image, sound recording, or other physical impression of that other person engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person, this bill would make entry into the "airspace" above such property for the same purposes a "physical" invasion of privacy, as well. The activity which is sought to be prohibited by this bill is very similar to (and arguably already prohibited by) the current prohibition on "constructive" invasion of privacy. This modest bill is supported by the California College and University Police Chiefs Association and has no other support or opposition on file. SUMMARY: Expands the scope of the cause of action in existing law for the physical invasion of privacy. Specifically, this bill: 1)Provides that a person is liable for physical invasion of privacy when the defendant knowingly enters "into the airspace" above the land of another person without permission. 2)Requires that the entry must be made in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person. EXISTING LAW: 1)Provides that a person is generally liable for the physical invasion of the privacy of another person when he or she knowingly enters onto the land of that other person without AB 856 Page 3 permission in order to capture any type of visual image, sound recording, or other physical impression of a person engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person. (Civil Code Section 1708.8(a). All statutory references are to the Civil Code, unless otherwise indicated.) 2)Provides that a person is liable for constructive invasion of the privacy of another person when he or she 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 that other person engaging in a private, personal, or familial activity, through the use of any device if the image, sound recording, or other physical impression could not have been achieved without the device, regardless of whether there is a physical trespass. (Section 1708.8(b).) 3)Provides that a person who commits either physical or constructive invasion of privacy is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section. (Section 1708.8(d).) 4)Provides that a person who commits either physical or constructive invasion of privacy may also be liable for punitive damages, subject to proof according to Section 3294. (Section 1708.8(d).) 5)Provides that if the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the defendant shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of privacy. (Section 1708.8(d).) 6)Provides that a person who commits either physical or constructive invasion of privacy is also subject to a civil AB 856 Page 4 fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000). (Section 1708.8(d).) 7)Provides that a person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to commit either physical or constructive invasion of privacy is liable for any general, special, and consequential damages resulting from each said violation, as well as punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section 3294. (Section 1708.8(e).) 8)Provides that a person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to commit either physical or constructive invasion of privacy is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000). (Section 1708.8(e).) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: Judicial construction of the right to privacy in California has developed along two distinct lines: (1) a common law right, supplemented in some instances by statutes, protecting a diverse set of individual interests from interference by nongovernmental entities; and (2) a federal constitutional right, derived from various provisions of the Bill of Rights, that took distinct shape in United States Supreme Court decisions in the 1960's safeguarding the rights of individuals and private entities from government invasion. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 23.) AB 856 Page 5 In considering the specific question of when a person has a reasonable expectation of privacy in the airspace around his or her home, courts have consistently held that while the Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures, it does not guarantee privacy. For example, the U.S. Supreme Court in 1986 ruled that police did not violate the Fourth Amendment when they rented a private plane and viewed the defendant's yard (where he was growing marijuana) from an altitude of 1,000 feet, despite the fact that the yard was surrounded by a 6-foot outer fence and a 10-foot inner fence. (Cal. v. Ciraolo (1986) 476 U.S. 207, 209.) The Court observed that the defendant's expectation of privacy in his backyard was unreasonable. That the backyard and its crop were within the "curtilage" of respondent's home did not itself bar all police observation. The mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer's observation from a public vantage point where he has a right to be and which renders the activities clearly visible. The police observations here took place within public navigable airspace, in a physically nonintrusive manner. (Id. at p. 215.) Thus, regardless of whether the source of a person's constitutionally protected right to privacy is in common law, the state Constitution, or the U.S. Constitution, courts tend to focus on reasonableness: whether the person who alleges a violation had an "objectively reasonable expectation of seclusion or solitude" and whether the person who committed the alleged violation was in a place he or she had a right to be and acted in a reasonable manner, considering the time, place, and manner of the alleged violation. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231-232.) The California Constitution creates a right of action against AB 856 Page 6 private, as well as government, entities. (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 20.) Entry "Into The Airspace" Above The Land Of Another Person. Property rights in California include rights to the "free or occupied space [above the property] for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law." (Section 659.) The right to the airspace above this state is vested in the owners of the land below, but is subject to both the state doctrine of overflight and federal regulations. (Drennen v. County of Ventura (1974) 38 Cal.App.3d 84, 87, citing Pub. Util. Code Section 21402, Civ. Code Section 659.) The doctrine of overflight provides that "Flight in aircraft over the land of another is lawful unless at altitudes below those prescribed by federal authority, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land." (Id., citing Pub. Util. Code Section 21403(a).) Where does the zone of personal airspace above real property end and the area of federal regulation - where "any citizen of the United States [has] a public right of freedom of transit through the navigable airspace of the United States" (49 U.S.C. 1304) - begin? Federal regulations provide for a "minimum safe altitude" which varies based on place and type of conditions. Section 119 of Part 91 of the Federal Aviation Regulations (FAR), provide that, "Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:" (a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface. AB 856 Page 7 (b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft. (c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure. (d) Helicopters, powered parachutes, and weight-shift-control aircraft. If the operation is conducted without hazard to persons or property on the surface. (1) A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA; and (2) A powered parachute or weight-shift-control aircraft may be operated at less than the minimums prescribed in paragraph (c) of this section. [Docket No. 18334, 54 FR 34294, Aug. 18, 1989, as amended by Amdt. 91-311, 75 FR 5223, Feb. 1, 2010] Therefore, a zone of airspace controlled by the owner of the land extends above the land to an altitude where it is governed by federal regulations, thereby protecting the privacy of the property owner from physical intrusion. The zone of personally-controlled airspace above real property is lower near airports because the statutory right of flight in aircraft includes the right of aircraft to safely access the zone of approach of any public airport without restriction or hazard. (Pub. Util. Code Section 21403(c), Drennen v. County of Ventura, 38 Cal.App.3d at p. 87.) Federal law defines navigable airspace to include "airspace needed to insure safety in take-off and landing of aircraft." (49 U.S.C. 1301 (24).) The owner does not control and therefore cannot necessarily be AB 856 Page 8 protected from observations made from places outside that zone of airspace where the public has the right of access - either on land (i.e. from a hill overlooking the property), water (i.e. from a boat on public waters adjacent to the property) or in the air (i.e. from a helicopter or plane traveling in navigable airspace above the property), unless those observations are made under circumstances that amount to "constructive" invasion of privacy. "To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source [citations omitted]." (Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at pp. 231-232.) According to the author, this bill seeks to curtail the sometimes aggressive conduct of the paparazzi, presumably by using mechanical or electronic devices to fly into the airspace above another person's property (i.e. drones). Several similar bills have come before this Committee in recent years. These bills usually pit the privacy rights of celebrities against the interests of news organizations in reporting upon, and the public's interest in reading about, the goings-on of the rich, the famous, the infamous, and others who are simply more interesting than the rest of us. As the author notes: Last year my Committee on Arts, Entertainment, Sports, tourism and Internet Media was part of a joint oversight hearing into the privacy implications of drones, entitled, "Drones in our Future: Opportunities and Privacy Considerations. . . Testimony at our hearing also included a discussion of needed reform to our existing Paparazzi Privacy Act from the Paparazzi Reform Initiative. They AB 856 Page 9 pointed to the abuses of technology by paparazzi, which have used drones for years to invade the privacy and capture images of public persons in their most private of activities. Recent news confirms their concerns; According to TMZ, a major paparazzi agency -- AKM-GSI -- has been selling drone videos of celebrity homes. Steve Ginsburg, who owns the agency, is clear - there is no law prohibiting his company from shooting aerial footage of homes ... even if the celebs are in the shot. Longtime Hollywood publicist Howard Bragman said of drone-armed paparazzi, "It's very real, it's very frightening, and it's very inevitable. With small smartphone-controlled drones already available for several hundred dollars, drones with cameras will become commonplace in Hollywood." California's celebrities, like all the state's citizens, have constitutionally protected rights to property, as well as privacy. Our Constitution specifically protects our rights to acquire, possess, and protect our property and to pursue and obtain "safety, happiness, and privacy." (Cal. Const., art. I, sec. 1.) But the rights of celebrities are certainly no greater than the rights of ordinary citizens. (And in fact, a public figure's expectation of privacy may be far less than an ordinary person's, depending on the extent to which the figure has "willingly entered into the public sphere" (Kapellas v. Kofman (1969) 1 Cal.3d 20, 36.).) Furthermore, the rights of celebrities to privacy should never interfere with the right of the public to enjoy the beauty and wonder of our state. In 2003, for example, world-renowned singer and actress Barbra Streisand sued Kenneth Adelman, creator of the California Coastal Records Project, a scientific photographic database documenting the California coast, for violating her privacy by taking a photograph of her seaside home and labeling it as her home. The superior court dismissed Ms. Streisand's complaint before trial because, among other reasons, the photographs were AB 856 Page 10 not of a private location (in that it was visible from a public place), did not disclose private information (in that her address was available from other public sources), and the photographer's actions were not "highly offensive to a reasonable person." (Streisand v. Adelman (2003) Los Angeles Superior Court, SC-077257, http://www.californiacoastline.org/streisand/slapp-ruling.pdf .) It is the Committee's understanding and belief that this bill is not intended to interfere with the right of the public to obtain photographs of places that are of interest to the public, including but not limited to California's coast and other public lands. The bill is drafted narrowly, only applying when there is an entry into the airspace over another person's land and the entry is (1) made knowingly, (2) is made without permission, (3) is made for the specific intent of capturing a visual image, sound recording, or other physical impression of another person who is engaging in a private, personal, or familial activity, and (4) occurs in a manner that is offensive to a reasonable person. Given the narrow scope of the bill - especially the requirement that the person enter the airspace for the purpose of capturing images or recordings of another person engaged in a private, personal, or familial activity - the right of the public to document the coast and other public places, as was done in the Streisand case, will be protected, even when a photograph happens to include an image of private property, and individual or individuals, and even private activities that are visible from the air that are occasionally and inadvertently captured in such photos. Recent Legislation May Have Addressed The Type Of Intrusion Which This Bill Seeks To Address. Last year's Assembly Bill 2306 (Chau, Chap. 858, Stats. 2014) amended subdivision (b) of Section 1708.8 to provide that a "constructive" invasion of the privacy occurs when a person attempts to capture, in a manner that is offensive to a reasonable person, any type of visual AB 856 Page 11 image, sound recording, or other physical impression of another person engaging in a private, personal, or familial activity, through the use of any device if the image, sound recording, or other physical impression could not have been achieved without the device, regardless of whether there is a physical trespass. This Committee's analysis of AB 2306 pointed out that "whether one uses enhanced or unusually powerful lenses to capture the image from afar, or whether one captures the image by the use of some other device, does not particularly matter. The critical requirement is that a device allowed the capturing of an image that otherwise could only have been obtained with a physical trespass." Arguably, the exact same activity - using a device to capture an image or recording of that other person engaging in a private, personal, or familial activity - is at issue in this bill because there is no way for a person without superhuman powers of flight (or Glenda the Good Witch's nifty floating bubble in The Wizard of Oz) to physically invade the airspace over another person's land without some type of flying or floating device. But to borrow from the reasoning of last year's analysis, it does not really matter whether one captures an image by physically trespassing (i.e. by floating or flying) into the airspace above another person's property, or by capturing the image with a mechanical or electronic remotely controlled device that flies or floats into the airspace of another person's property under circumstances where the image otherwise could only have been obtained with a physical trespass. While the theory of liability may be different, the objectionable conduct and the result of that conduct is likely the same. In all of these cases, the reasonable expectation of privacy of that other person has been violated. It should be stressed, as well, that simple physical entry into "the airspace above the land of another personi would not create liability under this bill. All of the other existing elements of the statute would still have to be met: the entry must be AB 856 Page 12 knowing and without permission; the entry must be made for the purpose of capturing an image, recording, or impression of another person who is engaging in a private, personal, or familial activity; and the entry must occur in a manner that is offensive to a reasonable person. (Section 1708.8(a).) Author's Clarifying Amendment. In order to clarify that the "airspace" at issue in this bill is the area above a person's real property and not the person himself or herself, the author has agreed to the following clarifying amendment: On Page 2, at line 3, after the word "airspace," insert the following: "above the land" Legislative Response in Other States. According to the author, "legislation concerning drones has been introduced in at least 43 states, according to the NCSL, and it appears that other states have recognized both the promise and perils of drone use. Some of those states, more taken with the promise, have sought to encourage [their] development. This has generally taken the form of appropriations for research and development or in efforts to obtain one of the six FAA test sites. Others, more taken by the perils, have sought to limit the use of [drones]. For the most part, these limitations focus on law enforcement use of drones, most commonly by requiring law enforcement to obtain a warrant before using drones for law enforcement surveillance or in the course of criminal investigations. The relative paucity of legislation restricting drone use by private parties may suggest that these states believe that existing privacy laws and common law torts already provide adequate protection. It may also reflect [the] fact that, thus far, the FAA has only issued [drone] certificates to law enforcement, but has not as yet issued certificates from private commercial uses." AB 856 Page 13 Prior Related Legislation. AB 1256 (Bloom, Chap. 852, Stats. 2014) created a cause of action for the capture of a visual image or sound recording of another person with the use of an enhanced visual or audio device liable for "constructive" invasion of privacy, and made it illegal, and subject to civil liability, to attempt to obstruct, intimidate, or otherwise interfere with a person who is attempting to enter or exit a school, medical facility, or lodging, as defined. AB 2306 (Chau, Chap. 858, Stats. 2014) amended the Civil Code prohibition against "constructive" invasion of privacy by taking account of new technologies, including but not limited to unmanned aerial devices (or "drones"), that could permit an invasion of privacy without a physical trespass even though the device might not qualify as a "visual or auditory enhancing device," a term that was not defined in the existing statute. SB 606 (De Leon, Chap. 348, Stats. 2013) increased the penalties for the intentional harassment of a child or ward of another person because of that person's employment and it specified that conduct occurring during the attempt to capture a child's image or voice may constitute harassment if specified conditions occur. SB 15 (Padilla, 2103) would have required 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. (Failed passage in Assembly Public Safety Committee.) AB 2479 (Bass, Chap. 685, Stats. 2010) provided that a person who commits "false imprisonment" with the intent to capture any AB 856 Page 14 type of visual image, sound recording, or other physical impression of a plaintiff is subject to liability under the civil invasion of privacy statute and, as such, liable for damages and remedies available pursuant to that statute. This bill also amended the Vehicle Code to create heightened penalties for persons who engaged in unlawful forms of reckless driving while attempting to capture a visual image of another person. AB 524 (Bass, Chap. 499, Stats. 2009) amended the "invasion of privacy" statute (Civil Code Section 1708.8) so that a person who sells, transmits, publishes, or broadcasts an image, recording, or physical impression of someone engaged in a personal or familial activity violates the state's "invasion of privacy" statute. Previously, the statute had only applied to the person who wrongfully obtained the image, recording, or physical impression, but not necessarily the entity that sold or published the image, recording, or impression. REGISTERED SUPPORT / OPPOSITION: Support California College and University Police Chiefs Association Opposition None on file AB 856 Page 15 Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334