BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 856|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 856
Author: Calderon (D), et al.
Amended: 7/2/15 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 7/14/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
ASSEMBLY FLOOR: 78-0, 5/14/15 (Consent) - See last page for
vote
SUBJECT: Invasion of privacy
SOURCE: Author
DIGEST: This bill renders a person liable for physical invasion
of privacy when that person knowingly enters upon the land of
another, including by entry into the airspace above the land,
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.
ANALYSIS:
Existing law:
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1)Provides, in the California Constitution, 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.)
2)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.)
3)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).)
4)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).)
5)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;
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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).)
1)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
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:
1)Renders 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.
2)Makes other technical changes to existing law.
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
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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.
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 Modernization and Reform Act of
2012. 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.
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. 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
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. Indeed, a recent poll shows just
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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
Page 6
(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).
Related/Prior Legislation
SB 170 (Gaines, 2015) provides 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. The bill is pending in the Assembly
Appropriations Committee.
SB 142 (Jackson, 2015) clarifies that the operation of an
unmanned aerial vehicle less than 350 feet above the property of
another, without permission or legal authority, constitutes
trespass. The bill is pending on the Assembly Floor.
SB 262 (Galgiani, 2015) authorizes law enforcement agencies to
use unmanned aircraft systems provided such use complies with
certain conditions, including: search and seizure protections in
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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. The bill
also requires law enforcement agencies to receive approval from
their local governing body prior to using unmanned aircraft
systems, and restricts the use of such systems for conducting
surveillance of private property. The bill is pending in the
Senate Judiciary Committee.
SB 271 (Gaines, 2015) makes 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. The
bill exempts specified media and news personnel unless they
receive a request from school officials to cease using an
unmanned aircraft above a school, and also exempts law
enforcement. The bill is pending in the Assembly Appropriations
Committee.
AB 14 (Waldron, 2015) creates the Unmanned Aircraft Systems Task
Force, which is required to research, develop, and formulate a
comprehensive policy for unmanned aircraft systems in
California. The task force is required to submit, 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. The bill is pending reconsideration
in the Assembly Transportation Committee.
AB 56 (Quirk, 2015) prohibits 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. The bill prohibits 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. The bill is pending on the Senate Floor.
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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. The 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. The bill
died in the Assembly Public Safety Committee.
AB 1524 (Waldron, 2013) would have required any entity that owns
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. The bill was set
for hearing in the Assembly Transportation Committee, but the
hearing was cancelled at the author's request.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified8/10/15)
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California College and University Police Chiefs Association
Paparazzi Reform Initiative
OPPOSITION: (Verified8/10/15)
None received
ASSEMBLY FLOOR: 78-0, 5/14/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Linder, Medina
Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
8/13/15 13:13:47
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