BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 142|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
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                                   THIRD READING 


          Bill No:  SB 142
          Author:   Jackson (D)
          Amended:  4/14/15  
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  5-1, 4/7/15
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Anderson
           NO VOTE RECORDED:  Vidak

           SUBJECT:   Civil law:  unmanned aerial vehicles


          SOURCE:    Author


          DIGEST:  This bill states that the operation of an unmanned  
          aerial vehicle either below the navigable airspace overlying the  
          property of another, or less than 350 feet above ground in the  
          airspace overlying the property of another, without permission  
          constitutes trespass, and that using such a vehicle in trespass  
          to capture images or recordings of individuals engaged in  
          personal or familial activities constitutes physical invasion of  
          privacy.


          ANALYSIS:   Existing federal law defines "navigable airspace" as  
          airspace above the minimum altitudes of flight prescribed by  
          federal law and regulations, including airspace needed to ensure  
          safety in the takeoff and landing of aircraft. 


          Existing state law:










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          1)Provides that all people are by nature free and independent  
            and have inalienable rights.  Among these are enjoying and  
            defending life and liberty, acquiring, possessing, and  
            protecting property, and pursuing and obtaining safety,  
            happiness, and privacy.


          2)Provides, for the breach of an obligation not arising from  
            contract (including trespass), the measure of damages, except  
            where otherwise expressly provided, is the amount which will  
            compensate for all the detriment proximately caused thereby,  
            whether it could have been anticipated or not.


          3)Provides that the detriment caused by the wrongful occupation  
            of real property is deemed to include the value of the use of  
            the property for the time of that wrongful occupation, the  
            reasonable cost of repair or restoration of the property to  
            its original condition, and the costs, if any, of recovering  
            the possession.


          4)Provides that a person is liable for physical invasion of  
            privacy when the defendant knowingly enters onto the land of  
            another person without permission or otherwise committed a  
            trespass in order to capture any type of visual image, sound  
            recording, or other physical impression of the plaintiff  
            engaging in a private, personal, or familial activity and the  
            invasion occurs in a manner that is offensive to a reasonable  
            person.


          This bill:


          1)States that a person knowingly enters onto the land of another  
            person pursuant to subdivision (a) of Section 1708.8 of the  
            Civil Code if he or she does either of the following:


                 operates an unmanned aerial vehicle below the navigable  
               airspace, as defined in paragraph (32) of subsection (a) of  








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               Section 40102 of Title 49 of the United States Code,  
               overlaying the real property; or


                 operates an unmanned aerial vehicle less than 350 feet  
               above ground level within the airspace overlaying the real  
               property.


          1)States that a person wrongfully occupies real property and is  
            liable for damages pursuant to Section 3334 of the Civil Code  
            if, without permission, he or she does either of the  
            following:


                 operates an unmanned aerial vehicle below the navigable  
               airspace, as defined in paragraph (32) of subsection (a) of  
               Section 40102 of Title 49 of the United States Code,  
               overlaying the real property; or


                 operates an unmanned aerial vehicle less than 350 feet  
               above ground level within the airspace overlaying the real  
               property.


          Background


          The development of small unmanned aircraft systems - known  
          variously as "unmanned aerial vehicles," "remote piloted  
          aircraft," or simply "drones" - promises to transform the way  
          Californians interact with each other and their environment.   
          Just a few decades ago, small aircraft of this type were the  
          exclusive domain of hobbyists.  Within the last decade or so,  
          the public has become familiar with the military's use of  
          unmanned aircraft to accomplish certain mission objectives.   
          However, in December 2013 when Amazon.com, FedEx, and UPS  
          announced their plans to integrate unmanned aircraft into their  
          logistics and delivery services, the possibility of widespread  
          commercial adoption of this technology became clear.









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          At present, the use of unmanned aerial vehicles in the skies  
          over California is fairly restricted.  Congress effectively  
          closed the national airspace to commercial drone flights in the  
          Federal Aviation Administration Modernization and Reform Act of  
          2012 (Act).  That Act established a framework for safely  
          integrating unmanned aircraft into the national airspace no  
          later than September 30, 2015.  The Act does, however, permit  
          certain commercial unmanned aircraft operations to take place  
          before the integration framework is implemented.  Section 333 of  
          the Act authorizes the Secretary of Transportation to establish  
          special interim requirements for the operation of these aircraft  
          by designated operators, provided the aircraft and their  
          operators meet certain minimum standards and have applied for a  
          commercial use exemption.  To date, a handful of commercial  
          operators have applied for, and received, permission to fly  
          commercial drones, including several film production companies,  
          construction, surveying, and inspection companies, and a number  
          of real estate firms.  The Act also sets out a separate interim  
          operation exemption for "public unmanned aircraft," allowing  
          public agencies like police departments to operate drones upon  
          application, provided the aircraft and their operators meet  
          certain minimum standards. 


          Unlike commercial drone operations, flying an unmanned aircraft  
          strictly for hobby or recreational use is allowed today so long  
          as the operator pilots the craft in accordance with specific  
          safety rules.  As a result, private citizens are piloting most  
          of the drones one sees in California today.  The Act's safety  
          rules include a requirement to operate these recreational  
          aircraft in accordance with a community-based set of safety  
          guidelines, but the lack of more comprehensive rules  
          establishing clear boundaries for when, where, and how these  
          craft are to be operated has raised concerns.  Indeed, a recent  
          poll shows just how far this concern has permeated into the  
          general public.  According to Reuters, "[s]ome 73 percent of  
          respondents to [an online poll] said they want regulations for  
          the lightweight, remote-control planes," and "forty-two percent  
          went as far as to oppose private ownership of drones, suggesting  
          they prefer restricting them to officials or experts trained in  
          safe operation."  (Alwyn Scott, Americans OK With Police Drones  








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          - Private Ownership, Not So Much: Poll  
           
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            existing law on trespass and physical invasion of privacy in  
            two important ways.


            First, this bill explicitly provides that operating an  
            unmanned aerial vehicle without permission below the federal  
            "navigable airspace" overlaying the property of another, or  
            less than 350 feet over the property of another, constitutes  
            trespass.  Just as trespass occurs when one directs a remote  
            controlled vehicle onto another's property, this bill  
            clarifies that flying a drone in close proximity to another's  
            land without permission constitutes unauthorized entry.


            Second, this bill clarifies that committing trespass in order  
            to physically invade the property of another with the intent  
            of recording their private personal or familial activities  
            includes physical entry by a drone.  Just as taking  
            unauthorized pictures of an individual inside their home while  
            standing in their backyard violates their right to privacy,  
            this bill clarifies that directing a drone to do the same  
            thing without permission constitutes physical invasion of  
            privacy.


            Drones have a lot of potentially useful and extremely  
            innovative uses, but invading our privacy and property without  
            permission shouldn't be among them.  When we're in our  
            backyards, with our families, we have an expectation that we  
            have a right to privacy.  By extending the long-established  
            concepts of trespass and privacy to include drone operations,  
            this bill brings these concepts into the 21st century.


          Related/Prior Legislation


          SB 170 (Gaines, 2015) provides that a person who knowingly and  
          intentionally operates an unmanned aircraft system below  
          "navigable airspace," as defined in federal law, overlaying a  
          state prison is guilty of a misdemeanor, and also provides, with  
          certain exceptions, that a person who knowingly and  








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          intentionally captures images or data of a state prison through  
          the operation of an unmanned aircraft is guilty of a  
          misdemeanor.  The bill is pending in the Senate   Appropriations  
          Committee.


          SB 262 (Galgiani, 2015) authorizes law enforcement agencies to  
          use unmanned aircraft if the use of such aircraft complies with  
          protections against unreasonable searches guaranteed by the  
          United States Constitution and the California Constitution,  
          federal law applicable to the use of an unmanned aircraft system  
          by a law enforcement agency, and state law applicable to a law  
          enforcement agency's use of surveillance technology that can be  
          attached to an unmanned aircraft system.  The bill is pending in  
          the Senate Judiciary Committee.


          SB 271 (Gaines, 2015) makes it an infraction to operate an  
          unmanned aircraft on or above the grounds of a public school  
          providing instruction in kindergarten or grades 1 to 12.   
          Violators will face a fine of no more than $150 for the first  
          violation, and a fine of no more than $500 for each subsequent  
          violation.  The bill is pending in the Senate Appropriations  
          Committee.  


          AB 14 (Waldron, 2015) creates the Unmanned Aircraft Systems Task  
          Force, which will be required to research, develop, and  
          formulate a comprehensive policy for unmanned aircraft systems  
          in California.  The task force will be required to submit, among  
          other things, a policy draft and suggested legislation  
          pertaining to unmanned aircraft systems to the Legislature and  
          the Governor on or before January 1, 2018.  The bill is pending  
          in the Assembly Transportation Committee.


          AB 56 (Quirk, 2015) prohibits public agencies from using  
          unmanned aircraft systems, or contracting for the use of these  
          systems, with certain exceptions for law enforcement agencies  
          acting pursuant to a warrant and in certain other cases,  
          including when the use or operation of the unmanned aircraft  
          system achieves the core mission of the agency and the purpose  








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          for use is unrelated to the gathering of criminal intelligence.   
          The bill also requires notice by public agencies intending to  
          deploy unmanned aircraft, requires images, footage, or data  
          obtained through the use of such aircraft to be permanently  
          destroyed within one year except as specified, and prohibits  
          equipping unmanned aircraft with weapons.  The bill is pending  
          in the Assembly Privacy and Consumer Protection Committee.


          AB 1327 (Gorell, 2014) would have prohibited public agencies  
          from using unmanned aircraft systems, or contracting for the use  
          of these systems, with certain exceptions for law enforcement  
          agencies acting pursuant to a warrant and in certain other  
          cases, including when the use or operation of the unmanned  
          aircraft system achieves the core mission of the agency and the  
          purpose of use is unrelated to the gathering of criminal  
          intelligence.  The bill would have also required notice by  
          public agencies intending to deploy unmanned aircraft, would  
          have required images, footage, or data obtained through the use  
          of such aircraft to be permanently destroyed within one year  
          except as specified, and would have prohibited equipping  
          unmanned aircraft with weapons.  The bill was vetoed by Governor  
          Brown.


          SB 15 (Padilla, 2013) would have, among other things, required  
          law enforcement agencies to obtain search warrants when using  
          unmanned aircraft, and would have required that an application  
          for the search warrant specify the intended purpose for which  
          the unmanned aircraft would be used.  The bill would have also  
          restricted data collection by unmanned aircraft and would have  
          prohibited equipping unmanned aircraft with weapons.  The bill  
          died in the Assembly Public Safety Committee.


          AB 1524 (Waldron, 2013) would have required any entity that owns  
          or operates an unmanned aircraft to place identifying  
          information or digitally store identifying information on the  
          aircraft.  The bill would have exempted model aircraft, and  
          would have made a person or entity that violates its provisions  
          liable for a civil fine not to exceed $2,500.  The bill was set  
          for hearing in the Assembly Transportation Committee, but the  








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          hearing was cancelled at the author's request.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified4/15/15)


          American Chemistry Council 
          Privacy Rights Clearinghouse


          OPPOSITION:   (Verified4/15/15)


          CSAC Excess Insurance Authority


          ARGUMENTS IN SUPPORT:     According to Privacy Rights  
          Clearinghouse, the emergence of drone technology has created  
          many new opportunities for Californians' privacy to be invaded  
          in ways that could not be imagined several years ago.  No longer  
          is trespass limited to activities occurring at ground level.   
          Drones operating under the command of others can effortlessly  
          fly over fences and other structures meant to exclude others,  
          allowing individuals to invade areas of the home traditionally  
          protected from prying eyes.  This bill extends liability for  
          wrongful occupation of real property and damages to a person who  
          without permission operates an unmanned aerial vehicle below the  
          navigable airspace (lower than 350 feet) overlaying the real  
          property.

          ARGUMENTS IN OPPOSITION:According to CSAC Excess Insurance  
          Authority, our public entities are exposed to numerous forms of  
          litigation on an annual basis.  Such cases can take years to  
          resolve and result in the expenditure of significant sums of  
          public funds that could otherwise be used in the community.  SB  
          142 creates yet another avenue of potential liability.   
          Presently, SB 142 offers no immunity for public entities for the  
          use of unmanned aerial vehicles.  Thus, if this bill is passed,  








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          anytime a public entity operates an unmanned aerial vehicle, it  
          will be subject to one or more claims for damages from persons  
          who own the real property over which the vehicle is flying.


          Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
          4/15/15 16:29:12


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