BILL ANALYSIS Ó
AB 856
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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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