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
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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
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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
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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.)
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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
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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.
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(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
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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
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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
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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
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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
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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."
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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
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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
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Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334