BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1820 Hearing Date: June 21, 2016
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|Author: |Quirk |
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|Version: |May 19, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Unmanned Aircraft Systems
HISTORY
Source: Author
Prior Legislation:SB 167 (Gaines) not heard 2015
SB 170 (Gaines) Vetoed 2015
SB 262 (Galgiani) Failed Senate Judiciary 2015
SB 263 (Gaines) not heard 2015
SB 271 (Gaines) Vetoed 2015
AB 56 (Quirk) inactive Senate Floor
SB 15 (Padilla) failed Assembly Public Safety
2014
AB 1327 (Gorell) Vetoed 2014
Support: California Civil Liberties Advocacy; Central Coast
Forest Association
Opposition:American Civil Liberties Union; California Police
Chiefs Association; California State Sheriffs'
Association; Consumer Federation of California;
Consumer Watchdog; Electronic Frontier Foundation;
Peace Officers Research Association of California;
Privacy Rights Clearinghouse
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Assembly Floor Vote: 43 - 25
PURPOSE
The purpose of this bill is to regulate the use of unmanned
aircraft systems (UAS) by law enforcement agencies.
Existing law provides that the right of the people to be secure
in their persons, houses, papers, and effects against
unreasonable seizures and searches may not be violated; and a
warrant may not issue except on probable cause, supported by
oath or affirmation, particularly describing the place to be
searched and the persons and things to be seized. (Cal. Const.,
art. 1, sec. 13.)
Existing law states that a search warrant is an order in
writing, in the name of the people, signed by a magistrate,
directed to a peace officer, commanding him or her to search for
a person or persons, a thing or things, or personal property,
and, in the case of a thing or things or personal property,
bring the same before the magistrate. (Penal Code § 1523.)
Existing law provides that a search warrant may be issued upon
any of the following grounds:
a) When the property was stolen or embezzled;
b) When the property or things were used as the means of
committing a felony;
c) When the property or things are in the possession of any
person with the intent to use them as a means of committing a
public offense, or in the possession of another to whom he or
she may have delivered them for the purpose of concealing them
or preventing them from being discovered;
d) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has
been committed, or tends to show that a particular person has
committed a felony;
e) When the property or things to be seized consist of evidence
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that tends to show that sexual exploitation of a child, or
possession of matter depicting sexual conduct of a person
under the age of 18 years, has occurred or is occurring;
f) When there is a warrant to arrest a person;
g) When a provider of electronic communication service or
remote computing service
has records or evidence, showing that property was stolen or
embezzled constituting a misdemeanor, or that property
or things are in the possession of any person with the intent
to use them as a means of committing a misdemeanor public
offense, or in the possession of another to whom he or she may
have delivered them for the purpose of concealing them or
preventing their discovery;
h) When the property to be seized includes evidence of a
violation of specified Labor Code sections;
i) When the property to be seized includes a firearm or deadly
weapon or any other
deadly weapon at the scene of a domestic violence offense;
j) When the property to be seized includes a firearm or deadly
weapon owned by a person apprehended because of his or her
mental condition;
k) When the property to be seized is a firearm in possession of
a person prohibited under the family code;
l) When the information to be received from the use of a
tracking device under shows a specified violation of the Fish
and Game Code or Public Resources Code;
m) When a sample of blood would show evidence of a DUI; or,
n) Starting January 1, 2016, when the property to be seized is
a firearm owned by a person subject to a gun violence
restraining order. (Penal Code § 1524(a).)
Existing law prohibits wiretapping or eavesdropping on
confidential communications, which excludes communications made
in public or in any circumstance that the parties may reasonably
expect that the communication may be overheard or recorded.
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(Penal Code § 632 (c).)
Existing law provides that nothing in the sections prohibiting
eavesdropping or wiretapping prohibits specified law enforcement
officers or their assistants or deputies acting within the scope
of his or her authority, from overhearing or recording any
communication that they could lawfully overhear or record.
(Penal Code § 633.)
Existing law, in the California Public Records Act, generally
provides that access to information concerning the conduct of
the people's business is a fundamental and necessary right of
every person in this state. (Government Code, § 6250 et. seq.)
Existing law provides that public records are open to inspection
at all times during the office hours of the state or local
agency and every person has a right to inspect any public
record, except as provided. Any reasonably segregable portion
of a record shall be available for inspection by any person
requesting the record after deletion of the portions that are
exempted by law. (Government Code, § 6253)
This bill prohibits a law enforcement agency from using an UAS,
obtaining a UAS from another public agency by contract, loan or
other arrangement, or using information obtained from an UAS
used by another public agency, except as provided in the
provisions of this bill.
This bill specifies that the provisions of this bill apply to
all law enforcement agencies and private entities when
contracting with or acting as the agent of a law enforcement
agency for the use of an UAS.
This bill allows a law enforcement agency to use UAS system, or
use information obtained from a UAS system used by another
public agency, only if the law enforcement agency complies with
the regulations of this bill and all other applicable federal,
state, and local laws.
This bill requires a search warrant if the use of a UAS by a
local law enforcement agency involves the collection of images
or data from another city or county, unless an exigent
circumstance exists or the law enforcement agency has entered
into a written public agreement with the appropriate law
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enforcement agency in the other city or county.
This bill requires a law enforcement agency to develop and make
available to the public the policy on its use of the UAS, and
requires training of the law enforcement agency's officers and
employees on the policy, if they elect to use a UAS.
This bill requires a law enforcement agency to use the unmanned
aircraft system consistent with the policy developed regarding
UAS.
This bill specifies that a law enforcement agency's UAS policy
must include the following:
The circumstances under which an unmanned aircraft
system may or may not be used;
The rules and processes required before using an
unmanned aircraft system;
The individuals who may access or use an unmanned
aircraft system or the information collected by an unmanned
aircraft system and the circumstances under which those
individuals may do so;
The safeguards to protect against unauthorized use or
access;
The training required for any individual authorized to
use or access information collected by an unmanned aircraft
system;
The guidelines for sharing images, footage, or data with
other law enforcement agencies and public agencies;
The manner in which information obtained from another
public agency's use of an unmanned aircraft system will be
used;
Mechanisms to ensure that the policy is adhered to.
The finalized policy developed shall be posted on the
law enforcement agency's public Internet Web Site
The law enforcement agency shall maintain an Internet
Web site page for public input to address civilians'
concerns and recommendations.
This bill provides that if a law enforcement agency elects to
permit another law enforcement agency to use an UAS within the
jurisdiction by means of an agreement, the agency shall post a
copy of the agreement on its Internet Web site. The agreement
shall at minimum specify that the policies developed by the law
enforcement agency that owns the UAS will be complied with by
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the law enforcement agency in the jurisdiction in which the UAS
is used.
This bill prohibits a law enforcement agency from using a UAS,
or information obtained from an UAS used by another public
agency, to surveil private property unless the law enforcement
has obtained a search warrant or express permission of the
person or entity with legal authority to authorize a search of
the property.
This bill allows a law enforcement agency, without first
obtaining a warrant or consent from the property owner over
private property, to use an UAS if an exigent circumstance
exists.
This bill specifies that exigent circumstances include, but are
not limited to, the following:
In emergency situations if there is an imminent
threat to life or of great bodily harm, including, but
not limited to fires, hostage crises, "hot pursuit"
situations if reasonably necessary to prevent harm to law
enforcement officers or others; and search and rescue
operations on land or water.
To determine the appropriate response to an imminent
or existing environmental emergency or disaster,
including, but not limited to, oils spills or chemical
spills.
This bill requires images, footage, or data obtained through the
use of an UAS shall be permanently destroyed with one year,
except in the following circumstances the agency may retain the
data:
For training purposes of the law enforcement
agency's employees in matters related to the mission of
the law enforcement agency;
For academic research or teaching purposes;
If a search warrant authorized collection of the
images, footage, or data; and
If the images, footage, or data are evidence in any
claim filed or any pending litigation, internal
disciplinary proceeding, enforcement proceeding, or
criminal investigation.
This bill prohibits a person, entity, or public agency from
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equipping or arming an UAS with a weapon or other device that
may be carried by or launched from an UAS and that may cause
bodily injury or death or damage to, or the destruction of, real
or personal property, unless authorized by federal law.
This bill specifies that law enforcement agencies using unmanned
aircraft systems shall operate them to minimize the collection
of images, footage, or data of persons, places, or things not
specified with particularity in the warrant authorizing the use
of an unmanned aircraft system, or, if no warrant was obtained,
for purposes unrelated to the justification for the operation.
This bill states that none of the provisions in this bill are
intended to conflict with or supersede federal law, including
rules and regulations of the Federal Aviation Administration
(FAA)
This bill authorizes a local legislative body to adopt more
restrictive policies on the acquisition or use of unmanned
aircraft systems by a law enforcement agency.
This bill states that except for provisions of this bill, that
surveillance restrictions on electronic devices shall also apply
to UAS.
This bill defines "surveil" as "the purposeful observation of a
person or private property with the intent of gathering criminal
intelligence."
This bill defines "criminal intelligence" as "information
compiled, analyzed, or disseminated in an effort to anticipate,
prevent, monitor, or investigate criminal activity."
This bill defines "law enforcement agency" as "the Attorney
General, each district attorney, and each agency of the state or
subdivision of the state authorized by statute to investigate or
prosecute law violators and that employs peace officers."
This bill defines "UAS" as an unmanned aircraft and associated
elements, including communication links and the components that
control the unmanned aircraft, that are required for the pilot
in command to operate safely and efficiently in the national
airspace system.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
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31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Per the Federal Aviation Administration (FAA), an
unmanned aircraft system (UAS) is an unmanned aircraft
and all of the associated support equipment, control
station, data links, telemetry, 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.
Current FAA rules prohibit UAS use in FAA airspace 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.
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On February 15, 2015, the FAA published a proposed a
new framework of regulations for the use of UAS in
national airspace (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.
An UAS is inherently different from manned aircrafts,
both in size and flying capability. Some unmanned
aircraft weigh 1,900 pounds and can remain aloft for 30
hours or more because there is no need for them to land
to change pilots. Some are 6 inches long. Others can
perform dangerous missions without risking loss of
life. However, most UAS currently available for
purchase by law enforcement lack the capability to do
more than simply hover for small periods of time before
needing to recharge.
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.
California lacks any law or regulation governing the
acquisition and use of UAS by law enforcement agencies.
Several jurisdictions have already purchased drones
with very little, if any, public announcement or
discussion.
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In response to the lack of direction on the use of this
new technology, AB 1820 requires law enforcement
agencies to develop policies on the use of unmanned
aircraft systems. Areas that must be covered in the
policy include the following:
Circumstances under which an unmanned aircraft
system may or may not be used
The individuals who may access the unmanned
aircraft system and training requirements
Safeguards to protect against unauthorized use
or access
Guidelines for sharing images, footage or data
with other law enforcement agencies and public
agencies
Mechanics to ensure the policies are ensured
AB 1820 requires law enforcement agencies to post the
policies on their website and to allow for public to
comment on any concerns or suggestions on their use.
With limited exceptions, data captured by unmanned
aircraft systems must be destroyed within a year.
AB 1820 requires law enforcement agencies to operate
unmanned aircraft systems in a way that minimizes the
inadvertent collection of images, footage and data.
Additionally, the bill prohibits the use of a drone
over private property unless access to the property is
granted, or, pending an exigent circumstance, a warrant
is obtained.
2. Technology and the 4th Amendment
Both the United States and the California constitutions
guarantee the right of all persons to be secure from
unreasonable searches and seizures. (U.S. Const., amend. IV;
Cal. Const., art. 1, sec. 13.) This protection applies to all
unreasonable government intrusions into legitimate expectations
of privacy. (United States v. Chadwick (1977) 433 U.S. 1, 7,
overruled on other grounds by California v. Acevedo (1991) 500
U.S. 565.) In general, a search is not valid unless it is
conducted pursuant to a warrant where a person has a reasonable
expectation of privacy. The mere reasonableness of a search,
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assessed in light of the surrounding circumstances, is not a
substitute for the warrant required by the Constitution.
(Arkansas v. Sanders (1979) 442 U.S. 753, 758, overruled on
other grounds by California v. Acevedo, supra.) There are
exceptions to the warrant requirement, but the burden of
establishing an exception is on the party seeking one. [Arkansas
v. Sanders (1979) 442 U.S. 753, 760, overruled on other grounds
by California v. Acevedo, supra.]
Courts have been confronted with questions of how evolving
technology intersects with the Fourth Amendment. In Kyllo v.
United States (2001) 533 U.S. 27, the U.S. Supreme Court
considered whether the use of a thermal imager, which detects
infrared radiation invisible to the naked eye, to determine
whether the defendant was growing marijuana in his apartment,
was a search in violation of the Fourth Amendment. The Court
held that "[w]here, as here, the Government uses a device that
is not in general public use, to explore details of the home
that would previously have been unknowable without physical
intrusion, the surveillance is a 'search' and is presumptively
unreasonable without a warrant." (Id. at p. 40.)
In United States v. Jones (2012) 132 S. Ct. 945, the Supreme
Court was presented with a Fourth Amendment challenge to the use
of a Global Positioning System (GPS) tracking device by law
enforcement officers to monitor the movements of a suspected
drug trafficker's vehicle over a period of 28 days. The Court
held that the government's installation of the GPS device on the
defendant's private property for the purpose of conducting
surveillance constituted a "search" under the Fourth Amendment.
GPS technology is intrusive because it "generates a precise,
comprehensive, record of a person's public movements that
reflects a wealth of detail about her familial, political,
professional, religious, and sexual associations. The Government
can store such records and efficiently mine them for information
years into the future." (Id. at pp. 955-956.)
Because technology is always evolving it is important to
consider how new technology should be regulated in order to
avoid governmental abuse. The Court's decisions in prior cases
provide some guidance on how new technology may be evaluated
within the framework of the Fourth Amendment's protections
against unreasonable searches and seizures. As illustrated in
Kyllo and Jones, even in a public space, the use of advanced
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technology to conduct surveillance without a warrant may be
restricted by the Fourth Amendment.
3. Use of UAS by a Law Enforcement Agency
Generally, this bill requires allows a law enforcement agency to
use a UAS on public lands when specified requirements are met
and requires a warrant, permission or exigent circumstance for
an UAS to be used on private property.
It would require a law enforcement agency to develop a public
policy on the use of an UAS and train its officers and employees
in the use before using an UAS. The bill specifies what issues
at minimum the policy must address and requires that the policy
be posted on the law enforcement agency's website.
The bill also provides that if an agency uses an UAS from
another jurisdiction they may only do so if an exigent
circumstance exist or if the law enforcement agency has entered
into a written, public agreement with the appropriate law
enforcement agency in the other jurisdiction and that the other
law enforcement agencies complies with the requirements of the
law.
4. Use on Private Property
This bill provides that a law enforcement agency shall not use
an UAS or borrow a UAS to surveil private property unless the
law enforcement agency has either obtained a search warrant or
has the express permission of the person or entity with the
legal authority to authorize a search of the property. However
if there is an exigent circumstance, including an emergency
situation where there is an imminent threat to life or of great
bodily harm or a need to determine the appropriate response to
an imminent or existing environmental emergency or disaster.
5. Retention of Data
This bill provides that a law enforcement agency using a UAS
should make a good faith effort to operate the system so as to
minimize the collection of images, footage, or data of persons,
places or things not specified with particularity in the warrant
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authorizing the use or for purposes unrelated to the
justification for the operation.
This bill provides that images, footage or data obtained through
the use of an UAS shall be permanently destroyed within one year
unless:
The data, images etc. are to be use for educational and
training of the law enforcement agency's employees.
The data, images etc. are to be used for academic
research or teaching purposes.
If a search warrant authorized the collection of images,
data etc.
If the images, data etc. are evidence in any claim filed
or any pending litigation, internal disciplinary
proceeding, enforcement proceeding or criminal
investigation.
5. Arming of a UAS
This bill prohibits equipping or arming an UAS with a weapon or
other device that may be carried by, or launched or directed
from, an UAS and that is intended to cause incapacitation,
bodily injury or death, or damage to, or the destruction of,
real or personal property.
6. Support
The California Civil Liberties Advocacy supports this bill
stating:
The CCLA believes that law enforcement should never be
permitted to use unmanned aerial vehicles absent a
warrant based on probable cause. Nor should they be
allowed to disseminate images or video footage of
persons or property captured by such vehicles to other
agencies or to the public absent a warrant, court
order, absent the express consent of the persons or
lawful owners of the property contained in the footage.
Under the provisions of AB 1820, law enforcement
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agencies will be prohibited from using unmanned aerial
vehicles absent a usage and data retention policy that
must be finalized pursuant to a regularly scheduled
public meeting. The bill stipulates-and it is
imperative-that local members of the public have an
opportunity to weigh in on these policies. To exclude
members of the public from the policy-making process
would be to circumvent a fundamental component of a
democratic republic. Though local legislative bodies
and law enforcement groups would likely be opposed, it
would be far more ideal if such policies were put to a
vote by the local electorate. These pragmatic concerns
aside, the opportunity for public comment is necessary
at the bare minimum in order to preserve some semblance
of a democracy.
The most significant provision of AB 1820 is the
requirement that law enforcement agencies obtain a
search warrant based on probable case. Nonetheless, AB
1820 currently contains provisions for exigent
circumstances where obtaining a warrant would hinder
law enforcement, or where "the collection of images,
footage, or data" may involve another jurisdiction.
This should ameliorate any fears from law enforcement
that AB 1820 will hinder "hot pursuit" or emergency
situations, or the incidental collection of images or
footage involving other jurisdictions.
6. Opposition
The ACLU, Consumer Watchdog, Privacy Rights Clearinghouse
and Consumer Federation of California oppose this bill
stating in part:
Although it may be unintended, AB 1820 appears to grant
unparalleled and unconstitutional surveillance powers
to the state. For example, by allowing unlimited use
of a drone over all public lands, highways, and spaces
open to the public, law enforcement would apparently be
authorized to track any person by following them around
any time they are in public, without any judicial
oversight or cause to suspect wrongdoing. This kind of
monitoring is even more intrusive than using a GPS
device to track the movements of a suspect, which was
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invalidated as an unconstitutional search in United
States v Jones (2012) 132 S. Ct. 945 because it
"generates a precise, comprehensive, record of a
person's public movements that reflects a wealth of
detail about her familial, political, professional,
religious and sexual associations. The Government can
store such records and efficiently mine them for
information years into the future" (Id. At pp.
955-956.)
By omitting the need for a warrant when a law
enforcement agency uses drones over public lands within
its jurisdiction, among other omissions, AB 1820
implies there is no expectation of privacy so long as
the drone is over a public area. The right to privacy
is not lost simply because the surveillance is over
public land. This kind of invasive spying authorized
by AB 1820 is not consistent with reasonable
expectations of privacy and appears to be in violation
of both article 1§ 1of the California Constitution and
the Fourth Amendment to the US Constitution.
-- END -