BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2320


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          Date of Hearing:  April 12, 2016


                ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION


                                   Ed Chau, Chair


          AB 2320  
          (Calderon and Low) - As Amended April 4, 2016


          SUBJECT:  Unmanned aircraft systems


          SUMMARY:  Prohibits the operation of unmanned aircraft systems  
          (UAS) in a manner that violates a protective order, constitutes  
          stalking, interferes with emergency response personnel, or  
          facilitates delivery of contraband into a jail or prison; and  
          also prohibits sex offenders from using a UAS and prohibits  
          local governments from regulating UAS.  Specifically, this bill:  



          1)Makes it a misdemeanor, punishable by a fine of up to $1,000  
            and a year in county jail, as provided, to use a UAS to  
            intentionally and knowingly violate a protective order that  
            prohibits a person from coming within a specified distance of  
            another person. 

          2)Specifies that flying a UAS within the distance prohibited or  
            capturing images of the person covered by a protective order  
            is a violation of that order.  



          3)Provides that if the violation of a protective order by a UAS  
            results in physical injury (or is a second violation within a  








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            year), the violation is punishable by a fine of up to $2,000  
            and not less than 30 days (but no more than one year) in  
            county jail.



          4)Prohibits a person who is required to register as a sex  
            offender from operating a UAS. 



          5)Makes it a misdemeanor to use a UAS to view the scene of an  
            emergency in a way that impedes police officers, firefighters,  
            emergency medical, or other emergency personnel, or military  
            personnel in the performance of their emergency duties.



          6)Makes it a misdemeanor to use a UAS to stalk another person by  
            willfully, maliciously, and repeatedly following or willfully  
            and maliciously harassing another person and making a credible  
            threat with the intent to place that person in reasonable fear  
            for his or her safety, or the safety of his or her immediate  
            family; and makes using a UAS to stalk someone when there is a  
            temporary restraining order in place a felony.
            
          7)Makes it a felony to use a UAS to bring contraband into a jail  
            or state prison.



          8)Specifies that the authority to regulate the ownership or  
            operation of unmanned aircraft is vested solely in the state,  
            and prohibits cities and counties from enacting ordinances or  
            resolutions that regulate the ownership or operation of UAS,  
            or otherwise engage in the regulation of UAS, unless expressly  
            authorized by statute.










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          9)Defines "unmanned aircraft" and "unmanned aircraft system"  
            consistent with federal law.
          


          10)Defines "critical infrastructure" to mean an airport, an  
            electrical power generation system, a petroleum refinery, a  
            manufacturing facility that utilizes any combustible chemicals  
            either in storage or in the process of manufacturing, a  
            chemical or rubber manufacturing facility, or a petroleum or  
            chemical storage facility.
          11)States that it is the intent of the Legislature that a person  
            be prohibited from using UAS within 250 feet of a critical  
            infrastructure facility for the purpose of conducting  
            surveillance, gathering evidence or collecting information  
            about the facility, or photographically or electronically  
            recording data about critical infrastructure.



          12)Makes various legislative findings and declarations regarding  
            the Federal Aviation Administration's (FAA) regulation of UAS,  
            the beneficial uses of UAS, and public concerns about the  
            privacy and public safety impacts of UAS.



          13)Makes various technical and clarifying changes to current  
            law.
            


          EXISTING LAW: 


          1)Vests the FAA with the authority to regulate airspace use,  
            management and efficiency, air traffic control, safety,  
            navigational facilities, and aircraft noise.  (49 U.S.C. Sec.  








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            40103, 44502, and 44701-44735)  


           2)Requires, under the FAA Modernization and Reform Act of 2012  
            (Act), the FAA to integrate safely UAS operation into the  
            national airspace system by September 30, 2015, and to develop  
            and implement certification requirements for the operation of  
            UAS in the national airspace system.  (Public Law Number  
            112-095)  


           3)Requires, under FAA rules, as of February 19, 2016, federal  
            registration of a UAS before first flight outdoors, for any  
            UAS weighing more than 0.55 pounds (250 grams) and less than  
            55 pounds (approx. 25 kilos), including payloads such as  
            on-board cameras, and requires UAS owners to be at least 13  
            years old to register and to provide name, home address, and  
            email address.  Upon registration, UAS owners receive a  
            Certificate of Aircraft Registration/Proof of Ownership along  
            with a unique identification number, which must be marked or  
            affixed to the UAS.  (14 CFR Parts 1, 45, 47, 48, 91, and 375)  


           4)Makes it a misdemeanor to violate a protective order is a  
            misdemeanor that prohibits a person from coming within a  
            specified distance of another person.  If the violation  
            results in physical injury (or is a second violation within a  
            year), makes the violation punishable with a fine of up to  
            $2,000 and not less than 30 days (but no more than one year)  
            in county jail. (Penal Code (PC) Section 273.6)


          5)Under California's "Megan's Law," requires sex offenders to  
            register their current residence in a statewide public  
            registry of sex offenders.  (PC 290 et seq.) 


          6)Prohibits a person convicted of a felony from possessing a  
            firearm.  (PC 29800)  








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           7)Makes it a misdemeanor to stop and view the scene of an  
            emergency in a way that impedes police officers, firefighters,  
            emergency medical, or other emergency personnel, or military  
            personnel in the performance of their emergency duties.  (PC  
            402)



          8)Makes it a misdemeanor to stalk another person by willfully,  
            maliciously, and repeatedly following or willfully and  
            maliciously harassing another person and making a credible  
            threat with the intent to place that person in reasonable fear  
            for his or her safety, or the safety of his or her immediate  
            family, and specifies that stalking someone when there is a  
            temporary restraining order in place carries a felony penalty   
            (PC 646.9)
            
          9)Makes it a felony to use a UAS to bring contraband into a jail  
            or state prison.  (PC 4573.5)

          FISCAL EFFECT:  Unknown


          COMMENTS:  


           1)Purpose of this bill  .  This bill seeks to protect personal  
            privacy and public safety by amending a variety of existing  
            laws to clarify that a violation of those laws can be  
            committed by use of a UAS, and also by prohibiting the  
            regulation of UAS ownership and operation by local  
            governments.  This bill is author-sponsored.



           2)Author's statement  .  According to the author, "The FAA is in  
            the process of developing rules that are intended to safely  








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            integrate small unmanned aircraft systems into the national  
            airspace system and that, following issuance of a notice of  
            proposed rulemaking and public comment period, are expected to  
            be released in 2016 or 2017.  While the FAA is developing the  
            small unmanned aircraft system rules, California has a  
            responsibility to ensure the safety of our citizens and at the  
            same time, help foster an industry that can provide a wide  
            range of useful applications."

           3)What are UAS?   The FAA defines a UAS as an unmanned aircraft  
            system and all of the associated support equipment, control  
            stations, data links, telemetry, and communications and  
            navigation equipment necessary to operate the unmanned  
            aircraft.  More commonly referred to as a drone, a UAS is  
            flown either by a pilot via a ground control system or  
            autonomously through use of an on-board computer.  





           4)Proliferation of recreational UAS and new FAA registration  
            rules  .  UAS are widely available to the public.  Retail UAS  
            devices outfitted with cameras now range from roughly $300 to  
            $1,500.  The FAA estimates that nearly one million UAS were  
            sold during the December 2015 holiday season.  In anticipation  
            of the influx of UAS in the skies, the FAA issued new rules in  
            2015 requiring any UAS weighing between half a pound and 55  
            pounds to be registered with the FAA by February 19, 2016.   
            The new FAA registration rules apply only to "model aircraft,"  
            i.e., recreational UAS.  



            According to FAA Commissioner Michael Huerta, who led a March  
            2016 panel on the future of UAS at the SXSW "South by  
            Southwest" event in Austin, Texas, the FAA now has more than  
            400,000 UAS registrants, which surpasses the 320,000 piloted  
            airplanes currently registered with the FAA.  Upon  








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            registration, the FAA issues a unique identifier, which must  
            be affixed to the UAS in a "readily accessible and visible  
            manner."  The unique identifier can then be used to look up  
            the UAS owner in the event of an accident, for example. 





            To the extent that registration becomes routine for  
            recreational UAS users, the FAA registration rules would  
            greatly assist with the enforcement of this bill.  The FAA  
            rules give law enforcement direct access to search its  
            database of UAS owners using the unique identifier affixed to  
            the registered UAS.



           5)Future commercial UAS operation and FAA regulation  .  While  
            mostly still in the experimental stages, the potential  
            commercial applications for UAS are growing exponentially.   
            UAS can give the news media economical and environmentally  
            friendly access to aerial views of traffic, storms, and other  
            events when compared to the current use of helicopters and  
            other manned aircraft.  UAS are beginning to be used in the  
            agricultural industry to observe and measure crops while  
            conserving resources and avoiding the use of heavy equipment.   
            UAS also show great promise for use in commercial delivery and  
            communications.  

          In 2012, Congress passed the Act which required the FAA to  
            establish a framework for safely integrating commercial UAS  
            into the national airspace no later than September 30, 2015,  
            and authorized the FAA to establish interim requirements for  
            the commercial operation of UAS.  Under the interim rules, UAS  
            operators must meet certain standards and apply for a  
            commercial use exemption and an FAA Certificate of  
            Authorization in order to operate in in "navigable airspace,"  
            which is generally above 500 feet.  








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            On February 15, 2015, the FAA proposed a new framework of  
            regulations to allow the use of small UAS in the airspace from  
            the ground up to 500 feet.  If enacted, the proposed rules  
            would limit flights to non-recreational, daylight uses and  
            would require a commercial UAS pilot to maintain a visual line  
            of sight with the UAS.  Congress is currently considering FAA  
            reauthorization legislation that contains a number of UAS  
            provisions, including a proposed requirement that UAS  
            operators pass an online test, a requirement that UAS contain  
            certain safety features, and a new program to fund  
            interception of UAS that fly to close to airports. 
           6)Using UAS to violate protective orders or stalk someone  .  A  
            protective order is a court-issued directive to stop a person  
            who has harassed or abused another person from getting within  
            a specified distance of that person for a certain time period.  
             Since UAS can be used to bother or capture images of a  
            person, this bill specifies that using a UAS to enter the  
            prohibited distance specified in a protective order is a  
            violation of the order and subject to the same penalties as  
            other violations of protective orders.  



            Similarly, stalking laws prohibit a person from repeatedly  
            following or harassing another person in a way that puts that  
            person in fear.  While a future court might find that a UAS  
            can be used to violate any of California's specific privacy  
            laws, the author contends that statutory updates are needed in  
            order to ensure that people's privacy and personal safety is  
            protected.  This bill specifies that using a UAS to stalk  
            someone constitutes a violation of stalking laws and is  
            subject to the same penalties that apply when a person stalks  
            a person by physically following or harassing someone. 











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           7)Sex offenders and UAS  .  This bill prohibits a person who is a  
            registered sex offender from using a UAS for any reason.   
            Under current law, a person convicted of any felony is  
            prohibited from possessing a firearm.  However, unlike  
            firearms, UAS have numerous commercial and recreational uses  
            that a person who is a registered sex offender might lawfully  
            pursue without posing a danger to others. 

          The author and the Committee may wish to consider whether a  
            blanket ban on drone use is appropriate, or if only particular  
            activities or areas relevant to the conviction should be  
            denied to registered sex offenders.  



           8)Emergencies and UAS interference .  California law prohibits  
            people from stopping at an emergency in order to view the  
            scene if doing so interferes with emergency personnel.   
            Nevertheless, in 2015, California experienced a number of UAS  
            interferences with emergency responses to wildfires throughout  
            the state.  

          Aerial firefighting aircraft, such as air tankers and  
            helicopters, must fly at very low altitudes in order to be  
            effective.  Hobbyists who fly UAS near fires create the  
            potential for a mid-air collision that could injure or kill  
            aerial and ground firefighters as well as innocent bystanders  
            on the ground below.  Because of this risk, when firefighters  
            detect a UAS flying over or near a wildfire, air operations  
            must be suspended until all drones flying in a fire area are  
            removed.  This delay allows wildfires to grow, and in some  
            cases like the North Fire in San Bernardino County, such a  
            delay can pose an immediate threat to human lives and  
            property.  

          This bill explicitly prohibits any use of a UAS that interferes  
            with police, fire, medical, or other emergency or military  








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            personnel as they respond to natural or manmade emergencies.



           9)Prisons and UAS .  Concerns have been raised about drone  
            overflights of prisons, and there are multiple examples of  
            people attempting to use UAS to introduce contraband to  
            prisons.  According to the New York Times, "some would-be  
            smugglers are experimenting with [UAS] as an alternative to  
            established methods like paying off officers, hiding  
            contraband in incoming laundry and throwing packages disguised  
            as rocks over fences into recreational yards."  ("Airmail Via  
            Drones Is Vexing For Prisons," New York Times, April 22, 2015)  
             

          The author aims to improve prison and jail security by making it  
            a felony to use a UAS to deliver contraband to a prison or  
            jail.  



           10)Local government preemption of UAS ordinances and  
            resolutions  .  This bill was recently amended to prohibit local  
            governments from passing ordinances or resolutions that would  
            regulate UAS.  The author contends that having a patchwork of  
            varying UAS rules in cities and counties across the state  
            would make it difficult for recreational and commercial UAS  
            operators to stay apprised of and properly follow local laws. 



            On the other hand, local governments would argue that they are  
            responsible for local health and safety matters, and are  
            generally more attuned to their communities' unique needs than  
            the state or federal government - and for that reason may be  
            in a better position to establish local rules for personal  
            privacy and safety.   










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            As an example of this tension between state and local control,  
            California laws that regulate aircraft establish statewide  
            uniformity, but those laws also leave room for local  
            governments to pass certain local restrictions on airplanes.   
            Courts have affirmed the authority of municipalities to  
            exercise land-use control over the siting and development of  
            airports.  In one recent case, Skyranch Pilots Ass'n v. County  
            of Sacramento (July 2, 2008), a California appeals court held  
            that a county's decision not to renew a conditional use permit  
            for a privately owned, public-use airport was not preempted by  
            the State Aeronautics Act. (Ct. App. 3d Dist.; 164 Cal.App.4th  
            671, 79 Cal.Rptr.3d 539) 





            Likewise, California's Vehicle Code sets a variety of  
            statewide standards, such as highway, residential and school  
            zone vehicle speed limits, but state law allows cities and  
            counties to set local vehicle restrictions, such as  
            prohibiting cars in downtown pedestrian zones, adding speed  
            bumps to bring car speeds below 25 miles per hour on certain  
            residential streets, and establishing park opening and closing  
            hours including parking restrictions in and around parks when  
            closed.  



            As a result of recent amendments that would preempt local  
            ordinances, the bill has been double-referred to the Local  
            Government Committee for consideration of the impact on local  
            governments in California.











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           11)Critical infrastructure and UAS  .  This bill states that it is  
            the intent of the Legislature to ban the use of UAS within 250  
            feet of critical infrastructure.  However, Legislative intent  
            language does not have the force of l aw - it merely states  
            the Legislature's reasons for passing a piece of legislation,  
            which may influence a court when construing a statute that may  
            be unclear or ambiguous on its face.  

          Because the bill has no operative provisions that would prohibit  
            the flying of UAS near critical infrastructure, the author and  
            the Committee may wish to consider adding such as provision.   
            The author and Committee may also wish to consider whether  
            this bill's definition of critical infrastructure should  
            eventually be harmonized with two other bills moving through  
            the Legislature this year: AB 1841 (Irwin) and SB 868  
            (Jackson).    
           
           12)The federal preemption issue.   Once the FAA has finished  
            promulgating regulations governing the commercial deployment  
            of UAS, which is expected to occur in the next year or two, a  
            future court may find that those federal regulations preempt  
            certain state laws, or parts thereof - such as this one, if  
            passed - but much remains uncertain.  



          For example, in Montalvo v. Spirit Airlines, the Ninth Circuit  
            held in 2007 that federal law preempts state law aviation  
            safety standards in areas in which the FAA has issued  
            "pervasive regulations."  In discussing the Montalvo case, the  
            Ninth Circuit found that the specific FAA regulations relevant  
            in the case were "pervasive" in that they were "specific,"  
            detail[ed]," "complete," "thorough" and "comprehensive" and  
            that this pervasiveness evidenced Congressional intent to  
            broadly preempt state law.  The Montalvo court held that  
            "federal law occupies the entire field of aviation safety.   
            Congress' intent to displace state law is implicit in the  








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            pervasiveness of the federal regulations, the dominance of the  
            federal interest in this area, and the legislative goal of  
            establishing a single, uniform system of control over air  
            safety."  Montalvo v. Spirit Airlines, 508 F.3d 464, 473 (9th  
            Cir. 2007)



            Two years later, in Martin ex rel. Heckman v. Midwest Express  
            Holdings, Inc., the Ninth Circuit limited the scope of FAA  
            preemption and held that state law was only preempted if the  
            specific area covered by the plaintiff's tort claim was the  
            subject of pervasive federal regulations.  Martin ex rel.  
            Heckman v. Midwest Express Holdings, Inc. 555 F.3d 806, 811  
            (9th Cir. 2009)  


             


            The FAA itself recently took a more concrete position on the  
            issue of preemption of state UAS regulation.  According to a  
            December 17, 2015 FAA white paper entitled, "State and Local  
            Regulation of Unmanned Aircraft Systems (UAS)," the FAA stated  
            that "[l]aws traditionally related to state and local police  
            power - including land use, zoning, privacy, trespass, and law  
            enforcement operations - generally are not subject to federal  
            regulation." The FAA cited the following as examples:  



                     Requiring police to obtain a warrant before using  
                 UAS for surveillance;
                     Specifying that UAS may not be used for voyeurism;


                     Prohibiting the use of UAS to hunt or fish or  
                 interfere with someone hunting or fishing; and









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                     Banning the weaponization of UAS. 
                                                 




            While the courts will ultimately decide whether certain state  
            UAS laws are preempted or not, most of the provisions of this  
            bill appear to fall within the state and local government  
            police power, including the provisions related to violation of  
            protective orders, registered sex offenders, emergency  
            response, stalking and prisons, because they establish public  
            safety rules and help law enforcement prevent crime.  As such,  
            the chances of federal preemption of this bill would likely be  
            minimal.  However, the author and the Committee may wish to  
            consider whether a severability clause should be added to this  
            bill in the event that one or more parts are preempted.  



           1)Governor's vetoes of prior legislation .  In 2015, the  
            Legislature passed SB 168 (Gaines), which would have increased  
            fines for UAS interference with firefighting activities and  
            granted civil immunity to public entities, public employees,  
            and unpaid volunteers, and private entities acting within the  
            scope of delegated authority, that damage a UAS in the course  
            of providing a variety of emergency services.  The Legislature  
            also passed SB 170 (Gaines), which would have prohibited using  
            UAS over jails and prisons.  However, SB 168 and SB 170 were  
            vetoed by Governor Brown in part on the grounds that the  
            measures prohibited activities already prohibited under  
            current law.  In his veto message, Governor Brown stated: 



          "Each of these bills creates a new crime - usually by finding a  
          novel way to characterize and criminalize conduct that is  
          already proscribed.  This multiplication and particularization  








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          of criminal behavior creates increasing complexity without  
          commensurate benefit.  Over the last several decades,  
          California's criminal code has grown to more than 5,000 separate  
          provisions, covering almost every conceivable form of human  
          misbehavior.  During the same period, our jail and prison  
          populations have exploded.  Before we keep going down this road,  
          I think we should pause and reflect on how our system of  
          criminal justice could be made more human, more just and more  
          cost-effective."


           2)Arguments in opposition  . The California Police Chiefs  
            Association and the League of California Cities stated in a  
            co-signed letter:  "The April 4th amendments adding Section 7  
            of the bill clearly pre-empt municipal authority to regulate  
            unmanned aircraft systems within their borders, in direct  
            violation of cities' police power pursuant to Section 7 of  
            Article XI of the California Constitution.  The painfully slow  
            evolution of federal regulations with respect to unmanned  
            aircraft systems for recreational use, combined with the rise  
            in irresponsible use of this technology posing unreasonable  
            dangers to first responders and commercial aviation, and  
            finally the most recent and rather weak proposed federal  
            rulemaking for recreational drones which have yet to be  
            formally adopted as federal regulations, all argue against  
            federal pre-emption of either state or local regulation in  
            this area."  

            The letter states further:  "To add explicit pre-emption  
            language at this stage indicates a policy approach that places  
            the interests of the unmanned aircraft system industry above  
            that of aviation safety, first responders, commercial aviation  
            and the public safety needs of the general public."  





           3)Related legislation  .  AB 1662 (Chau) protects people from  








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            hit-and-run UAS accidents by requiring UAS operators to remain  
            at the scene of an accident and provide their name and address  
            along with valid identification to the victim and the police.   
            AB 1662 passed the Assembly Privacy and Consumer Protection  
            Committee on an 11-0 vote and is pending in the Assembly  
            Appropriations Committee.



            AB 1680 (Rodriguez) makes it a misdemeanor to operate a UAS in  
            a way that interferes with first responders.  AB 1680 passed  
            the Assembly Public Safety Committee on a 7-0 vote and is  
            pending in the Assembly Appropriations Committee. 



            AB 2724 (Gatto) requires UAS makers to include with the UAS a  
            copy of FAA safety regulations, and if the UAS is required to  
            be registered with the FAA, a notice of the registration  
            requirement. The bill also requires UAS with GPS technology to  
            be outfitted with a geo-fencing feature and requires UAS  
            owners to have adequate liability insurance.  AB 2724 is  
            pending before the Assembly Privacy and Consumer Protection  
            Committee.



            SB 807 (Gaines) grants civil immunity to public entities,  
            public employees, and unpaid volunteers, and private entities  
            acting within the scope of delegated authority, that damage a  
            UAS in the course of providing a variety of emergency  
            services.  SB 807 is pending before the Senate Judiciary  
            Committee.





            SB 808 (Gaines) clarifies that using a UAS to enter the  








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            airspace within which a person is prohibited from entering  
            under a protective order is a violation of the protective  
            order.  SB 808 is pending before the Senate Public Safety  
            Committee.





            SB 810 (Gaines) established fines for UAS interference with  
            firefighting activities.  SB 810 is pending before the Senate  
            Public Safety Committee.





            SB 811 (Gaines) makes it a felony to use UAS to deliver  
            contraband into a prison or county jail and creates a  
            misdemeanor crime for the use of UAS to fly over a prison or  
            capture images of a prison.  SB 811 is pending before the  
            Senate Public Safety Committee.



            SB 868 (Jackson) proposes the State Remote Piloted Aircraft  
            Act containing numerous provisions regulating the use of UAS.   
            SB 868 is pending before the Senate Transportation and Housing  
            Committee (and thereafter the Senate Public Safety Committee).



           4)Prior legislation  .  SB 168 (Gaines) of 2015 would have  
            increased fines for UAS interference with firefighting  
            activities and granted civil immunity to public entities,  
            public employees, and unpaid volunteers, and private entities  
            acting within the scope of delegated authority, that damage a  
            UAS in the course of providing a variety of emergency  
            services.  SB 168 was vetoed by Governor Brown.








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            SB 170 (Gaines) of 2015 would have prohibited a person from  
            knowingly and intentionally operating an UAS over a state  
            prison or county jail.  SB 170 was vetoed by Governor Brown.





            SB 263 (Gaines) of 2015 would have clarified that using a UAS  
            to enter the airspace within which a person is prohibited from  
            entering under a given protective order is a violation of the  
            protective order.  SB 263 was held in the Senate Public Safety  
            Committee.





            SB 271 (Gaines) of 2015 would have prohibited the use of UAS  
            at or less than 350 feet above a public school campus or to  
            use a UAS to capture images of school campus during school  
            hours without the written permission of the school principal.   
            SB 271 was vetoed by Governor Brown.  





            AB 856 (Calderon), Chapter 521, Statutes of 2015, expanded the  
            scope of the cause of action in existing law for physical  
            invasion of privacy by making a person liable for physical  
            invasion of privacy when the person knowingly enters "into the  
            airspace" above the land of another person without permission.











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           5)Double-referral  .  This bill has been double-referred to the  
            Assembly Local Government Committee, where it will be heard if  
            it passes this Committee.  


          Support




          None on file.




          Opposition


          California Police Chiefs Association
          City of Lakeport
          League of California Cities


          Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)  
          319-2200