BILL ANALYSIS Ó AB 856 Page 1 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 AB 856 Page 2 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)) AB 856 Page 3 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, AB 856 Page 4 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. AB 856 Page 5 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 AB 856 Page 6 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 AB 856 Page 7 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. AB 856 Page 8 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 AB 856 Page 9 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 AB 856 Page 10 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 AB 856 Page 11