BILL ANALYSIS Ó
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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