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 AB 2320 Page 2 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. AB 2320 Page 3 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. AB 2320 Page 4 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) AB 2320 Page 5 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 AB 2320 Page 6 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 AB 2320 Page 7 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. AB 2320 Page 8 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. AB 2320 Page 9 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 AB 2320 Page 10 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. AB 2320 Page 11 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. AB 2320 Page 12 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 AB 2320 Page 13 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 AB 2320 Page 14 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 AB 2320 Page 15 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 AB 2320 Page 16 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 AB 2320 Page 17 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. AB 2320 Page 18 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. AB 2320 Page 19 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