BILL ANALYSIS                                                                                                                                                                                                    Ó






           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                        AB 856|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                   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:









                                                                     AB 856  
                                                                    Page  2



          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;







                                                                     AB 856  
                                                                    Page  3




                 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  







                                                                     AB 856  
                                                                    Page  4


          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  







                                                                     AB 856  
                                                                    Page  5


          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  







                                                                     AB 856  
                                                                    Page  7


          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.








                                                                     AB 856  
                                                                    Page  8



          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)









                                                                     AB 856  
                                                                    Page  9


          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


                                   ****  END  ****