BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:   May 5, 2015


                ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION


                                  Mike Gatto, Chair


          AB 856  
           (Calderon) - As Amended April 9, 2015


          SUBJECT:  Invasion of privacy


          SUMMARY:  Expands the scope of the cause of action in existing  
          law for the physical invasion of privacy.  Specifically, this  
          bill:  


          1)Makes a person liable for physical invasion of privacy when  
            the person knowingly enters "into the airspace" above the land  
            of another person without permission. 


          2)Triggers liability if the entry into the airspace is for  
            capturing 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)Makes a person 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 permission in order to  








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            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  
            (CC) Section 1708.8(a))
          2)Makes a person 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.  (CC 1708.8(b))


          3)Establishes damages for physical or constructive invasion of  
            privacy as up to three times the amount of any general and  
            special damages that are proximately caused by the violation  
            of this section.  (CC 1708.8(d))


          4)Establishes that a physical or constructive invasion of  
            privacy is also subject to punitive damages.  (CC 1708.8(d))


          5)Establishes that if a plaintiff proves that the invasion of  
            privacy was committed for a commercial purpose, then the  
            defendant is also be subject to disgorgement to the plaintiff  
            of any proceeds or other consideration obtained as a result of  
            the violation of privacy.  (CC 1708.8(d))


          6)Establishes civil penalties for physical or constructive  
            invasion of privacy as not less than five thousand dollars  
            ($5,000) and not more than fifty thousand dollars ($50,000).   
            (CC 1708.8(d))










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          7)Establishes 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.   
            (CC 1708.8(e))


          8)Also establishes civil penalties of not less than five  
            thousand dollars ($5,000) and not more than fifty thousand  
            dollars ($50,000) where 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.  (CC 1708.8(e))


          FISCAL EFFECT:  None. This bill has been keyed non-fiscal by the  
          Legislative Counsel.


          COMMENTS:  


           1)Purpose of this bill  .  This bill seeks to clarify current law  
            prohibitions which are designed to curtail the sometimes  
            aggressive conduct of the paparazzi, by making a minor change  
            to existing law governing invasion of privacy.  This bill  
            would make entry into the "airspace" above private property  
            the same as a "physical" invasion of privacy.  This bill is  
            author-sponsored.

           2)Author's statement .  According to the author, "Paparazzi?have  
            used drones for years to invade the privacy and capture images  
            of public persons in their most private of activities.  
            According to TMZ, a major paparazzi agency -- AKM-GSI -- has  
            been selling drone videos of celebrity homes. Steve Ginsburg,  








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            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. 



          "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 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."



           3)Clarifying 2014 unmanned aircraft systems (UAS) legislation  .   
            In 2014, the Legislature passed AB 2306 (Chau) to allow for an  
            action against a person using "any device" in the attempt to  
            capture an image.  AB 2306 was an expansion from the prior  
            statutory language which had stated, "use of a visual or  
            auditory enhancing device?" to capture an image.  









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          However, AB 2306 did not change the prohibition against using  
            UAS to actually trespass in order to invade another's privacy.  
            AB 856 clarifies this by adding the words, "including  
            airspace" into the definition of physical invasion of privacy  
            in order to prohibit the use of UAS to cross over fences,  
            bypass gates and travel into private space in order to peer  
            into windows, capture activities and otherwise spy on people.

           4)What is a UAS  ? The FAA defines a UAS as an unmanned aircraft  
            system and all of the associated support equipment, control  
            station, data links, telemetry, and communications and  
            navigation equipment necessary to operate the unmanned  
            aircraft. A UAS is flown either by a pilot via a ground  
            control system or autonomously through use of an on-board  
            computer, communication link and any additional equipment used  
            to operate the UAS. 



          5)FAA Regulation of UAS  .  Current FAA rules prohibit UAS use in  
            FAA airspace unless, but allow commercial users to apply for  
            an exemption from the FAA rules along with an FAA Certificate  
            of Authorization (COA) permitting commercial uses, such as  
            real estate marketing, wedding photography, television, film,  
            mapping, and land surveys.  Federal, state and local  
            government agencies, law enforcement, and public colleges and  
            universities can also receive a COA from the FAA authorizing  
            specific uses of UAS for specific time periods.   



          On February 15, 2015, the FAA released proposed a new framework  
            of regulations for the use of UAS in national airspace, i.e.,  
            above 400 feet, which would allow the routine use of certain  
            small UAS (under 55 pounds).  The proposed rules would limit  
            flights to non-recreational, daylight, visual-line-of-sight  
            operations.  The rules also address height restrictions,  
            operator certification, aircraft registration and marking, and  
            operational limits. The proposed rules discuss the possibility  








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            of a more flexible regulatory framework for "micro" UAS (under  
            4.4 pounds).  This bill deals with regulation of UAS below FAA  
            airspace, i.e., below 400 feet.

           6)The potential and the peril of UAS  .  Despite the media and  
            public attention on the use of UAS in the context of weapons  
            deployment and terrorism, UAS have myriad practical  
            applications.  For example, UAS can be used to survey damage,  
            locate victims, and assess threats in natural and manmade  
            disasters without risking the lives of rescue workers.  UAS  
            can be used in agriculture to observe and measure crops while  
            conserving resources and avoiding the use of heavy equipment.   
            UAS can also give the media safe, economical, and  
            environmentally-friendly access to aerial views for news  
            broadcasts when compared to the current use of helicopters and  
            other manned aircraft.  Some law enforcement agencies have  
            acquired UAS for the intended use in emergency situations such  
            as hostage-taking, school shootings, and kidnapping-related  
            crimes.  



          However, the need for a comprehensive set of laws governing the  
            use of UAS is undisputed in light of the profound effect a UAS  
            could have on personal privacy.  UAS equipped with cameras,  
            microphones, Internet or wireless connections, and remote  
            controls have enormous potential to invade personal space by  
            hovering over backyards, outside the windows of homes, and  
            above the heads of individuals standing, walking, or sitting  
            alone or in groups in public and private spaces, to name a few  
            examples.  This bill sets standards for non-law enforcement  
            public agency use and seeks to limit law enforcement use of  
            UAS by requiring public notice for ongoing use over public  
            spaces and the consent of property owners for police drone  
            surveillance over private property.

           7)Legislation 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  








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            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."  



           8)Related legislation  . AB 14 (Waldron) creates the Unmanned  
            Aircraft Systems Task Force, comprised of 10 members; requires  
            the task force to research, develop, and formulate a  
            comprehensive state policy for UAS; and requires the task  
            force to submit a policy draft and suggested legislation  
            pertaining to UAS to the Governor, the Governor's Office of  
            Business and Economic Development, and the Legislature on an  
            ongoing basis or before January 1, 2018.  AB 14 failed passage  
            in the Assembly Transportation Committee on a 5-9 vote.



            SB 142 (Jackson) extends liability for wrongful occupation of  
            real property and damages to a person who without permission  
            operates a UAS below the navigable airspace overlaying the  
            real property.  SB 142 is currently pending on the Senate  
            Floor. 










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             SB 170 (Gaines) creates a felony crime for the use of a UAS to  
            deliver contraband into a prison or county jail and creates a  
            misdemeanor crime for the use of UAS over a prison or capture  
            images of a prison.  SB 170 is currently pending in the Senate  
            Appropriations Committee.





            SB 262 (Galgiani) authorizes a law enforcement agency to use a  
            UAS if it complies with protections against unreasonable  
            searches guaranteed by the U.S. Constitution and the  
            California Constitution, federal law applicable to the use of  
            UAS by a law enforcement agency, state law applicable to a law  
            enforcement agency's use of surveillance technology that can  
            be attached to a UAS, and if the local governing board  
            approves the use. SB 262 is sponsored by the California Police  
            Chief's Association.  SB 262 passed the Senate Public Safety  
            Committee on a 5-1 vote, and is pending in the Senate  
            Judiciary Committee.  

           9)Prior legislation  . AB 1256 (Bloom), Chapter 852, Statutes of  
            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), Chapter 858, Statutes of 2014, expanded a  
            person's potential liability for constructive invasion of  
            privacy, by removing the limitation that the person use a  
            visual or auditory enhancing device, and instead made the  
            person liable when using any device to engage in the specified  








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            unlawful activity.



            SB 606 (De Leon), Chapter 348, Statutes of 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) of 2013 would have imposed a search warrant  
            requirement on law enforcement agency use of a UAS in certain  
            circumstances, would have applied existing civil and criminal  
            law to prohibited activities with devices or instrumentalities  
            affixed to, or contained within a UAS, and would have  
            prohibited equipping a UAS with a weapon, and would have  
            prohibited using a UAS to invade a person's privacy.  SB 15  
            failed passage in the Assembly Public Safety Committee.

            AB 2479 (Bass), Chapter 685, Statutes of 2010, provided that a  
            person who commits "false imprisonment" with the intent to  
            capture any 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), Chapter 499, Statutes of 2009, amended the  
            "invasion of privacy" statute 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  








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            physical impression, but not necessarily the entity that sold  
            or published the image, recording, or impression.   

            10)Double-referral  .  This bill was double-referred to the  
            Assembly Judiciary Committee, where it was heard on April 7,  
            2015, and passed on the consent calendar on a 10-0 vote. 
          REGISTERED SUPPORT / OPPOSITION:




          Support


          Paparazzi Reform Initiative 




          Opposition


          None on file.




          Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)  
          319-2200


















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