BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 856 (Calderon)
          Version: July 2, 2015
          Hearing Date: July 14, 2015
          Fiscal: No
          Urgency: No
          TH   


                                        SUBJECT
                                           
                                 Invasion of Privacy

                                      DESCRIPTION  

          Existing law renders a person liable for physical invasion of  
          privacy when that person knowingly enters upon the land of  
          another without 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.

          This bill would state that entry onto the land of another, for  
          purposes of the above provision, includes knowingly entering  
          into the airspace above the land.

                                      BACKGROUND  

          The development of small unmanned aircraft systems - known  
          variously as "unmanned aerial vehicles," "remote piloted  
          aircraft," or simply "drones" - promises to transform the way  
          Californians interact with each other and their environment.   
          Just a few decades ago, small aircraft of this type were the  
          exclusive domain of hobbyists.  Within the last decade or so,  
          the public has become familiar with the military's use of  
          unmanned aircraft to accomplish certain mission objectives.   
          However, in December 2013 when Amazon.com, FedEx, and UPS  
          announced their plans to integrate unmanned aircraft into their  
          logistics and delivery services, the possibility of widespread  
          commercial adoption of this technology became clear.









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          At present, the use of unmanned aerial vehicles in the skies  
          over California is fairly restricted.  Congress effectively  
          closed the national airspace to commercial drone flights in the  
          Federal Aviation Administration (FAA) Modernization and Reform  
          Act of 2012.<1>  That Act established a framework for safely  
          integrating unmanned aircraft into the national airspace no  
          later than September 30, 2015.  The Act does, however, permit  
          certain commercial unmanned aircraft operations to take place  
          before the integration framework is implemented.  Section 333 of  
          the Act authorizes the Secretary of Transportation to establish  
          special interim requirements for the operation of these aircraft  
          by designated operators, provided the aircraft and their  
          operators meet certain minimum standards and have applied for a  
          commercial use exemption.  To date, a handful of commercial  
          operators have applied for, and received, permission to fly  
          commercial drones, including several film production companies,  
          construction, surveying, and inspection companies, and a number  
          of real estate firms.  The Act also sets out a separate interim  
          operation exemption for "public unmanned aircraft," allowing  
          public agencies like police departments to operate drones upon  
          application, provided the aircraft and their operators meet  
          certain minimum standards.<2>

          Unlike commercial drone operations, flying an unmanned aircraft  
          "strictly for hobby or recreational use" is allowed today so  
          long as the operator pilots the craft in accordance with  
          specific safety rules.<3>  As a result, private citizens are  
          piloting most of the drones one sees in California today.  The  
          Modernization and Reform Act's safety rules include a  
          requirement to operate these recreational aircraft "in  
          ---------------------------
          <1> H.R.658, 112th Congress (2011-2012).  In general, the FAA is  
          tasked with regulating aircraft operations conducted in the  
          national airspace under 49 U.S.C. Sec. 40103.  This authority  
          extends to unmanned aircraft operations, which, by definition,  
          are considered to be "aircraft."  (See 49 U.S.C. Sec.  
          40102(a)(6), which defines an "aircraft" as "any contrivance  
          invented, used, or designed to navigate, or fly in, the air.")

          <2> See Section 334 of the FAA Modernization and Reform Act of  
          2012.

          <3> See Section 336 of the FAA Modernization and Reform Act of  
          2012.









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          accordance with a community-based set of safety guidelines," but  
          the lack of more comprehensive rules establishing clear  
          boundaries for when, where, and how these craft are to be  
          operated has raised concerns.  (Id.)  Indeed, a recent poll  
          shows just how far this concern has permeated into the general  
          public.  According to Reuters, "[s]ome 73 percent of respondents  
          to [an online poll] said they want regulations for the  
          lightweight, remote-control planes," and "forty-two percent went  
          as far as to oppose private ownership of drones, suggesting they  
          prefer restricting them to officials or experts trained in safe  
          operation."  (Alwyn Scott, Americans OK With Police Drones -  
          Private Ownership, Not So Much: Poll  
           [as of Jul. 2, 2015].)

          Recent news articles indicate that paparazzi - photographers who  
          follow famous people in order to take their picture and sell  
          them to media outlets - have begun using drones as a tool to  
          capture images and recordings in places not easily accessed by a  
          person.  (See e.g. Carter Evans, Paparazzi Now Using Drones to  
          Hunt Down and Photograph Stars  
           [as of Jul. 2, 2015].)  Non-celebrities  
          across the country have also reported situations where  
          individuals have used drones to observe them in what they  
          thought were private or secluded settings.  (See Christina  
          Sterbenz, Should We Freak Out About Drones Looking In Our  
          Windows?  
           [as of Jul. 2, 2015].)

          This bill would expand existing law prohibiting the physical  
          invasion of another's privacy to include knowingly entering into  
          the airspace above another's land without permission in order to  
          capture private images or recordings, including through the use  
          of an unmanned aerial vehicle or drone.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the California Constitution, provides that all  
          people are by nature free and independent and have inalienable  
          rights.  Among these are enjoying and defending life and  
          liberty, acquiring, possessing, and protecting property, and  
          pursuing and obtaining safety, happiness, and privacy.  (Cal.  
          Const, art. I, Sec. 1.)








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           Existing case law  recognizes four distinct tort actions for  
          invasion of privacy: (a) intrusion into private places,  
          conversations or other matters; (b) public disclosure of private  
          facts; (c) presentation of a person to the public in a false  
          light; and (d) appropriation of image or personality.  (Shulman  
          v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214.)

           Existing law  renders a person liable for "physical invasion of  
          privacy" for knowingly entering onto the land of another person  
          without permission or otherwise committing a trespass in order  
          to capture any type of visual image, sound recording, or other  
          physical impression of that person engaging in a private,  
          personal, or familial activity and the invasion occurs in a  
          manner that is offensive to a reasonable person.  (Civ. Code  
          Sec. 1708.8 (a).)

           Existing law  renders a person liable for "constructive invasion  
          of privacy" for attempting to capture, in a manner that is  
          offensive to a reasonable person, any type of visual image,  
          sound recording, or other physical impression of another person  
          engaging in a private, personal, or familial activity, through  
          the use of any device, regardless of whether there is a physical  
          trespass, if this image, sound recording, or other physical  
          impression could not have been achieved without a trespass  
          unless the device was used.  (Civ. Code Sec. 1708.8 (b).)

           Existing law  defines "private, personal, and familial activity"  
          to include:
           intimate details of a person's personal life under  
            circumstances in which the person has a reasonable expectation  
            of privacy;
           interaction with the person's family or significant others  
            under circumstances in which the person has a reasonable  
            expectation of privacy;
           any activity that occurs on a residential property under  
            circumstances in which the person has a reasonable expectation  
            of privacy; and
           other aspects of the person's private affairs or concerns  
            under circumstances in which the person has a reasonable  
            expectation of privacy.  (Civ. Code Sec. 1708.8 (l).)

           Existing law  provides that a person who violates the invasion of  
          privacy statute, or who directs, solicits, actually induces, or  
          actually causes another person to violate the statute would be  








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          subject general, special, consequential, treble, and punitive  
          damages, as well as a civil fine of not less than $5,000 and not  
          more than $50,000.  (Civ. Code Sec. 1708.8(d), (e).)
          
           This bill  would render a person liable for physical invasion of  
          privacy if, in addition to meeting other existing requirements,  
          the person knowingly enters into the airspace above the land of  
          another person without permission.
          
                                        COMMENT
           
           1.Stated need for the bill  

            The author writes:

            Last session Assemblyman Chau introduced AB 2306, which  
            expanded the definition of "constructive trespass" under the  
            anti-paparazzi statute to include "any device" to project  
            oneself onto the property of, or into the private conversation  
            of, a person with a reasonable expectation of privacy  
            (including by drone), but failed to prohibit the actual  
            trespass onto the property when the drones come over fences  
            and past locked gates to spy on people in their yards, or peer  
            into their windows.  AB 856 plugs this loophole in the law by  
            clarifying that a person will be liable for physical invasion  
            of privacy when they actually enter onto the property of  
            another, including the airspace immediately above that  
            property.

            This extension of the paparazzi law is consistent with both  
            existing privacy policy contained in Civil Code 1708.8, The  
            Paparazzi Privacy Act, and property law.  In US v. Causby, the  
            United States Supreme Court was faced with the question of  
            whether the government's use of an airport near a chicken  
            farmer's home, and a flight path immediately over his house,  
            constituted a taking of his property due to disruption of his  
            sleep and production drop-off of his chickens.  In finding for  
            the plaintiff Mr. Causby, Justice Douglas wrote, "We have said  
            that the airspace is a public highway.  Yet it is obvious  
            that, if the landowner is to have full enjoyment of the land,  
            he must have exclusive control of the immediate reaches of the  
            enveloping atmosphere."  US v. Causby, 328 US 256 (1946).

           2.Constructive vs. Physical Invasions of Privacy  









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          The California Constitution provides that all people have  
          inalienable rights, including the right to pursue and obtain  
          privacy.  (Cal. Const. art. I, Sec. 1.)  This right has found  
          expression in California's invasion of privacy statute, which  
          renders a person liable for physical or constructive invasion of  
          privacy under specified circumstances.  Existing law, Civil Code  
          Section 1708.8(a), creates a cause of action for "physical  
          invasion of privacy" where an individual knowingly enters the  
          land of another person in order to invade his or her privacy by  
          capturing a visual image, sound recording, or other physical  
          impression of that person engaging in a personal or familial  
          activity.  Existing law also protects the right of privacy from  
          invasive activities occurring outside one's property through the  
          tort of "constructive invasion of privacy."  Codified at Civil  
          Code Section 1708.8(b), this tort renders a person liable for  
          invasion of privacy when that person attempts to capture, in an  
          offensive manner, any type of visual image, sound recording, or  
          other physical impression of another person in which that person  
          had a reasonable expectation of privacy, through the use of any  
          device, regardless of whether there was a physical trespass, if  
          the image or recording could not have been achieved without a  
          trespass unless the device was used.

          Together, these two torts cover the range of privacy invasions  
          that result from capturing images, recordings, or physical  
          impressions of individuals engaged in a private, personal, or  
          familial activity, whether or not the tortfeasor enters the land  
          of another commit these acts.  Existing law ascribes the same  
          penalties against a person who violates the invasion of privacy  
          statute, regardless of whether the violation resulted from a  
          physical invasion of privacy or a constructive invasion of  
          privacy.  In both cases, a person who violates the statute or  
          who directs, solicits, actually induces, or actually causes  
          another person to violate the statute is subject to general,  
          special, consequential, treble, and punitive damages, as well as  
          a civil fine of not less than $5,000 and not more than $50,000.

          This bill would expand the conditions under which a person  
          commits a physical invasion of privacy to include instances  
          where the tortfeasor enters into the airspace above the land of  
          another without permission in order to capture images,  
          recordings, or other physical impressions of a person in  
          violation of the statute.  This expansion would include using  
          unmanned aerial vehicles or drones above the property of another  
          to capture this information data, which, because of their  








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          inherent maneuverability, can glide effortlessly above fences  
          and walls meant to exclude others.  While using a drone to  
          capture images, recordings, or other physical impressions of a  
          person in violation of the invasion of privacy statute would  
          likely already be covered under the constructive invasion of  
          privacy statute in many circumstances, this expansion would  
          potentially provide victims of privacy violations with  
          additional causes of action and additional remedies against a  
          tortfeasor to the extent a reviewing court viewed each cause of  
          action as a separate violation.

           3.Right to Overlying Airspace  

          The existing tort of physical invasion of privacy extends to  
          situations where one "knowingly enters onto the land of another  
          person without permission or otherwise commit[s] a trespass" in  
          order to undertake acts in violation of the invasion of privacy  
          statute.  (Civil Code Section 1708.8(a).)  At its base, this  
          tort contains two essential elements:  (1) violation of a  
          property right (trespass); and (2) invasion of privacy (unlawful  
          capturing of images, recordings, or other physical impressions  
          of a person).  This bill would expand the notion of "physical  
          invasion" to include not only entry upon the land of another,  
          but entry into the airspace above that land.

          Existing law is ambiguous regarding the rights of a landowner to  
          restrict activity occurring above ground level.  At common law,  
          the maxim "cuius est solum, eius est usque ad coelum" (whoever  
          owns the soil, it is theirs up to heaven) rendered all airspace  
          above one's land as part of their estate.  With the advent of  
          aircraft and air travel, however, the common law understanding  
          of property rights extending to the stratosphere gave way to a  
          belief that the public ought to be able to traverse the skies as  
          freely as they do the seas.  The case of United States v. Causby  
          (1946) 328 U.S. 256 formalized this new, more limited  
          understanding of aerial property rights.  In that case, the U.S.  
          Supreme Court recognized "that the airspace is a public  
          highway," but also held in unresolved tension that "it is  
          obvious that if the landowner is to have full enjoyment of the  
          land, he must have exclusive control of the immediate reaches of  
          the enveloping atmosphere."  (Id. at 264.)  The Court explained:

            [t]he landowner owns at least as much of the space above the  
            ground as he can occupy or use in connection with the land. .  
            . . While the owner does not in any physical manner occupy  








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            that stratum of airspace or make use of it in the conventional  
            sense, he does use it in somewhat the same sense that space  
            left between buildings for the purpose of light and air is  
            used.  The superadjacent airspace at this low altitude is so  
            close to the land that continuous invasions of it affect the  
            use of the surface of the land itself.  We think that the  
            landowner, as an incident to his ownership, has a claim to it,  
            and that invasions of it are in the same category as invasions  
            of the surface.  (Id. at 264-65.)

          While recognizing the existence of these two competing  
          interests, the Court declined to delineate the boundary between  
          public and private airspace.  (See Id. at 266 ["we need not  
          determine at this time what those precise limits are"].)   
          However, the Court did at least recognize on the facts  
          particular to that case that the Causby's property interests  
          were encroached upon by military aircraft flying 83 feet above  
          their land.  (Id. at 258.)

          This bill, while not stating as much, appears to extend the  
          notion of trespass and physical invasion of the land itself into  
          the air to an unspecified altitude, for the purposes of defining  
          the tort of physical invasion of privacy.  Under this bill,  
          non-permissive entry into the airspace above the land of  
          another, just like entry and trespass onto the land itself,  
          would satisfy the property right violation that forms the basis  
          of a physical invasion of privacy claim.  The Paparazzi Reform  
          Initiative (PRI), writing in support, "completely endorses and  
          supports Assembly Bill 856 (Calderon) ("AB 856") because  
          definitional clarity needs to be provided to California Civil  
          Code  1708.8(a) ("1708.8") to ensure that, in no uncertain  
          terms, flying a Drone over the property of another constitutes a  
          trespass that is capable of triggering the application of  
          1708.8."  While it is clear under existing law that property  
          owners have the right to exclude drones and other flying devices  
          from the "immediate reaches of the enveloping atmosphere" above  
          their land (see Causby, 328 U.S. at 264), it is improbable that  
          this right extends ad infinitum to the heavens.  


           Support  :  California College and University Police Chiefs  
          Association; Paparazzi Reform Initiative

           Opposition  :  None Known









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                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :

          SB 170 (Gaines, 2015) would provide that a person who knowingly  
          and intentionally operates an unmanned aircraft on or above the  
          grounds of a state prison or a jail is guilty of a misdemeanor,  
          except as specified.  This bill is pending in the Assembly  
          Privacy and Consumer Protection Committee.

          SB 142 (Jackson, 2015) would clarify that the operation of an  
          unmanned aerial vehicle less than 350 feet above the property of  
          another, without permission or legal authority, constitutes  
          trespass.  This bill is pending in the Assembly Privacy and  
          Consumer Protection Committee.

          SB 262 (Galgiani, 2015) would authorize law enforcement agencies  
          to use unmanned aircraft systems provided such use complies with  
          certain conditions, including: search and seizure protections in  
          the U.S. and California Constitutions; federal law applicable to  
          unmanned aircraft systems; and state law applicable to law  
          enforcement agency use of surveillance technology.  This bill  
          would also require law enforcement agencies to receive approval  
          from their local governing body prior to using unmanned aircraft  
          systems, and would restrict the use of such systems for  
          conducting surveillance of private property.  This bill is  
          pending in the Senate Judiciary Committee.

          SB 271 (Gaines, 2015) would make it an infraction to operate an  
          unmanned aircraft on the grounds of, or less than 350 feet above  
          ground level within the airspace overlaying, a public school  
          providing instruction in kindergarten or grades 1 to 12 during  
          school hours and without permission of school officials.  This  
          bill would exempt specified media and news personnel unless they  
          receive a request from school officials to cease using an  
          unmanned aircraft above a school, and would also exempt law  
          enforcement.  This bill is pending in the Assembly Privacy and  
          Consumer Protection Committee.

          AB 14 (Waldron, 2015) would create the Unmanned Aircraft Systems  
          Task Force, which would be required to research, develop, and  
          formulate a comprehensive policy for unmanned aircraft systems  
          in California.  The task force would be required to submit,  








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          among other things, a policy draft and suggested legislation  
          pertaining to unmanned aircraft systems to the Legislature and  
          the Governor on or before January 1, 2018.  This bill is pending  
          reconsideration in the Assembly Transportation Committee.

          AB 56 (Quirk, 2015) would prohibit law enforcement agencies from  
          using unmanned aircraft systems, or contracting for the use of  
          these systems, unless the law enforcement agency complies with  
          specified requirements, including the development of a policy  
          concerning the use of the system, and complies with certain  
          provisions of state and federal law.  This bill would prohibit a  
          law enforcement agency from using an unmanned aircraft system to  
          surveil private property without a warrant, and would require  
          images, footage, or data obtained through the use of such a  
          system to be permanently destroyed within one year, except as  
          specified.  This bill is pending in the Senate Judiciary  
          Committee.

           Prior Legislation  :

          AB 1327 (Gorell, 2014) would have prohibited public agencies  
          from using unmanned aircraft systems, or contracting for the use  
          of these systems, with certain exceptions for law enforcement  
          agencies acting pursuant to a warrant and in certain other  
          cases, including when the use or operation of the unmanned  
          aircraft system achieves the core mission of the agency and the  
          purpose of use is unrelated to the gathering of criminal  
          intelligence.  The bill would have also required notice by  
          public agencies intending to deploy unmanned aircraft, would  
              have required images, footage, or data obtained through the use  
          of such aircraft to be permanently destroyed within one year  
          except as specified, and would have prohibited equipping  
          unmanned aircraft with weapons.  This bill was vetoed by  
          Governor Brown.

          SB 15 (Padilla, 2013) would have, among other things, required  
          law enforcement agencies to obtain search warrants when using  
          unmanned aircraft, and would have required that an application  
          for the search warrant specify the intended purpose for which  
          the unmanned aircraft would be used.  The bill would have also  
          restricted data collection by unmanned aircraft and would have  
          prohibited equipping unmanned aircraft with weapons.  This bill  
          died in the Assembly Public Safety Committee.

          AB 1524 (Waldron, 2013) would have required any entity that owns  








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          or operates an unmanned aircraft to place identifying  
          information or digitally store identifying information on the  
          aircraft.  The bill would have exempted model aircraft, and  
          would have made a person or entity that violates its provisions  
          liable for a civil fine not to exceed $2,500.  This bill was set  
          for hearing in the Assembly Transportation Committee, but the  
          hearing was cancelled at the author's request.

           Prior Vote  :

          Assembly Floor (Ayes 78, Noes 0)
          Assembly Privacy and Consumer Protection Committee (Ayes 11,  
          Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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