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
Page 6
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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