BILL ANALYSIS Ó
AB 2320
Page 1
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