BILL ANALYSIS Ó
SB 142
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Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Mike Gatto, Chair
SB
142 (Jackson) - As Amended June 30, 2015
SENATE VOTE: 24-9
SUBJECT: Civil law: unmanned aerial vehicles.
SUMMARY: Creates property rights in the airspace up to 350 feet
above private property with regard to the use of an unmanned
aircraft system (UAS). Specifically, this bill:
1)Creates a trespass violation for operating an unmanned
aircraft or UAS less than 350 feet above ground over private
property without consent or legal authority.
2)Clarifies that the bill does not impair or limit otherwise
lawful activities of law enforcement personnel, employees of
government agencies, or other public or private entities
having a right of entry onto the private property.
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3)Clarifies that the bill is not intended to limit the rights
and defenses available at common law under a trespass claim.
4)Defines "unmanned aircraft" and "unmanned aircraft system"
consistent with Federal Aviation Administration (FAA)
regulation.
5)Clarifies that the Public Utilities Code definition of
"aircraft" does not include UAS.
EXISTING LAW:
1)Requires, under the FAA Modernization and Reform Act of 2012,
the FAA to integrate UAS 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 by December 31, 2015. (Public Law Number 112-095)
2)Establishes that ownership of real property (land or water)
includes ownership of the airspace above the property, subject
to the right of flight as permitted by federal authority.
(Public Utilities (PU) Code Section 21402)
3)Specifies that flight by aircraft is lawful, unless at
altitudes below those prescribed by federal authority. (PU
21403)
4)Defines "aircraft" to mean any manned contrivance used or
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designed for navigation of, or flight in, the air requiring
certification and registration as prescribed by federal
statute or regulation." (PU 21012)
5)Establishes damages for certain trespass claims, i.e.,
wrongful occupation of real property claims, as follows:
a) The value of using the property, where the "value" is
the greater of the reasonable rental value or the benefits
obtained by the wrongful occupation;
b) The reasonable cost of repair or restoration of the
property to its original condition; and
c) The costs, if any, of recovering possession. (Civil
Code (CC) Section 3334)
6)Defines "physical invasion of privacy" as the knowing entry on
the land of another without permission, or otherwise committed
a trespass, in order to capture an image, sound recording or
other impression in a private, personal, or familial activity
and the invasion occurs in a manner that is offensive to a
reasonable person. (CC 1708.8)
7)Defines "constructive invasion of privacy" in terms of
attempting to capture, in a manner highly offensive to a
reasonable person, any type of visual image, sound recording,
or other physical impression of another person engaging in a
personal or familial activity under circumstances in which the
plaintiff had a reasonable expectation of privacy, through the
use of a visual or auditory enhancing device, regardless of
whether there was a physical trespass, if the image or
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recording could not have been achieved without a trespass
unless the visual or auditory enhancing device was used. (CC
1708.8 (b))
FISCAL EFFECT: None. This bill has been keyed nonfiscal by the
Legislative Counsel.
COMMENTS:
1)Purpose of this bill . This bill seeks to protect personal
privacy by restricting the use of UAS over private property up
to a height of 350 feet, unless the operator has permission
from the property owner or some other legal authority. This
bill is author-sponsored.
2)Author's statement . According to the author, "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. This bill extends these long-established definitions
of trespassing and privacy, and brings them into the 21st
century by applying them to drones.
"Drone technology is exciting and offers great new commercial
and recreational opportunities for Californians. But we need
to make clear what the rules are, and avoid situations where
people start crossing that line into someone else's private
space. This bill attempts to clear up some of the ambiguity
surrounding private property and drone operations by marking
the boundary between public 'navigable airspace' and private
property."
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3)The many uses of 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. A UAS is flown either by a pilot via a ground
control system or autonomously through use of an on-board
computer. UAS are widely available to the public. Retail UAS
devices outfitted with cameras now range from roughly $300 to
$1,500.
Commercial applications for UAS are growing exponentially.
UAS gives 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 is used in the
agricultural industry to observe and measure crops while
conserving resources and avoiding the use of heavy equipment.
And UAS may be the future delivery system for mail order and
Internet companies. In fact, Amazon, the largest
Internet-based retailer in the United States, plans to seek
FAA approval for "PrimeAir" - a new delivery system that uses
small UAS to deliver packages instead of using mail trucks.
According to the Amazon.com website, the company has UAS
delivery development and testing centers in the United States,
the United Kingdom and Israel, but has no immediate plans for
roll out.
4)FAA regulation of UAS . In 2012, Congress passed the FAA
Modernization and Reform Act of 2012 (Act). The Act required
the FAA to establish a framework for safely integrating UAS
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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 (COA) in order to operate in in "navigable
airspace," which is generally above 500 feet.
According to the author's office, the FAA has granted COAs to
operate UAS in navigable airspace to film production
companies, construction firms, surveying and inspection
companies, real estate marketing companies, and businesses
from other industries. Federal, state and local government
agencies, law enforcement, and public colleges and
universities can also receive a COA from the FAA authorizing
specific uses of UAS for specific time periods. Under a 1981
FAA advisory circular (AC 91-57), the FAA authorized the use
of "small" UAS (under 55 pounds) for recreational purposes
without a COA as long as the UAS is operated below 400 feet
and at least five miles from an airport.
However, 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 the UAS pilot to maintain a
visual line of sight with the UAS. The FAA has suggested that
it may create a less strict regulatory framework for "micro"
UAS (under 4.4 pounds).
While the proposed FAA rules could potentially permit UAS uses
from zero to 500 feet and may ultimately preempt state law,
this bill would establish a property right in the airspace up
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to 350 feet directly above private property, so that UAS could
not be flown at heights lower than 350 feet over private land,
homes, or buildings. By drawing the line at 350 feet, the
author intends to create a "transit zone in the airspace
between 350 feet to 500 feet through which a UAS could travel
over private property from one place to another without
entering FAA-regulated national airspace.
5)Where should private property rights end ? California law
gives property owners the rights to the airspaces above their
land, subject to FAA rules for manned flights, i.e.,
airplanes, helicopters, and other aircraft with pilots on
board.
The Supreme Court has previously held that landowner rights to
the airspace over property are limited. In United States v.
Causby, the Court concluded in 1946 that the ancient common
law doctrine "cuius est solum, eius est usqu ad coelom"
(whoever owns the soil, it is theirs up to heaven and down to
hell) had no place in the modern world. The Court rejected
the unlimited reach above and below the earth established in
the common law, but did not define a specific limit. Instead,
the Court held that "if the landowner is to have full
enjoyment of the land, he must have exclusive control of the
immediate reaches of the enveloping atmosphere."
Looking at the facts in Causby, the Court found that frequent
military aircraft flights 83 feet above a chicken farm, which
caused several of the chickens to die, violated the farmer's
property rights under the takings clause of the Fifth
Amendment of the U.S. Constitution. The Fifth Amendment
itself states that "private property [shall not] be taken for
public use, without just compensation." United States v.
Causby, 328 U.S. 256 (1946).
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This bill establishes a specific statutory property right as
to UAS use in the airspace above private property by making it
a trespass violation to operate a UAS in the airspace over
private property below 350 feet without permission. The
author contends that 350 feet is a reasonable demarcation
given that people should have a right to a UAS-free zone over
their property, balanced with the need for a UAS transit zone
below 500 feet, above which is generally reserved for manned
flight under FAA regulations. This bill clarifies that law
enforcement has the authority to use UAS over private property
at any height, as provided by law.
6)The federal preemption issue. Once the FAA has finished
promulgating regulations governing the use of UAS, a future
court may find that those regulations preempt certain state
laws - such as this one, if passed - but this remains
uncertain. In fact, the Ninth Circuit has taken a somewhat
narrow view of FAA preemption in recent decisions.
In Montalvo v. Spirit Airlines, the Ninth Circuit held 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.
Montalvo v. Spirit Airlines, 508 F.3d 464, 473 (9th Cir. 2007)
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Two years later, in Martin ex rel. Heckman v. Midwest Express
Holdings, Inc., the Ninth Circuit further 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) (Source: "The Ninth Circuit's "Nuanced"
Approach to FAA Preemption Leads to Greater Uncertainty and
Invites Artful Pleading," Morrison Foerster Client Alert March
18, 2013)
Nevertheless, while the issue of whether or not the final FAA
regulations governing UAS will be sufficiently "pervasive" as
to preempt state law remains unanswered, the immediate
question is simple: should state law give homeowners and
landowners the right to stop a UAS from flying over their
property at heights lower than 350 feet?
7)Privacy and safety concerns . In a recent national survey
conducted by Pew Research Center and the Smithsonian magazine,
63% of respondents said it would be a change for the worse "if
personal and commercial drones are given permission to fly
through most U.S. airspace." Privacy concerns were a frequent
sentiment expressed by respondents. ("U.S. Views of
Technology and the Future," Pew Research Center, April 17,
2014)
News stories on UAS hovering outside windows and over
backyards have proliferated as UAS devices have become more
affordable to hobbyists. A recent NPR story told of a San
Francisco resident whose wife was sitting in the living room
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and saw a UAS with a camera hovering outside the window. "She
started hiding behind furniture because something's looking in
at you ... and you're very self-conscious about that all of a
sudden," said the resident. "I found myself doing the same
thing. You're hiding behind your own furniture in your own
house where you just had privacy prior." ("As Drones Fly In
Cities and Yards, So Do the Complaints," NPR, May 12, 2014)
The Los Angeles Times recently reported that two unidentified
drones interfered with firefighter efforts to drop water and
flame retardant on fires burning near residential areas in
Southern California, leading to a delay in containing the
fires. ("Lake Fire in San Bernardino National Forest Grows To
Nearly 30,000 Acres," Los Angeles Times, June 26, 2015) Until
a more comprehensive regulatory system is put in place,
beginning with final FAA regulations, it is likely that
growing recreational and hobbyist use will lead to more such
incidents.
8)Prior actions by this Committee . AB 856 (Calderon), which
passed this Committee 11-0 on May 5, 2015, permits a claim for
physical invasion of privacy for intrusion into the airspace
above private property. AB 856 does not define an upper
boundary for the airspace protected, but a claim for physical
invasion of privacy can only be pursued when a UAS is used to
capture a visual image, sound recording, or other physical
impression of that person engaging in a personal or familial
activity.
AB 56 (Quirk), which passed this Committee on a 6-0 vote on
April 14, 2015, is consistent with this bill, because it
permits the use of UAS over private property if the operator
has permission or legal authority.
In addition to this bill, this Committee will hear two other
UAS bills on July 7, 2015: SB 170 (Gaines), which bans flying
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UAS over prisons and jails at any height for security reasons,
and SB 271 (Gaines), which limits the use of UAS over schools
below 350 feet.
9)Arguments in support . The Privacy Rights Clearinghouse
states, "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 [UAS] below the navigable
airspace (lower than 350 feet) overlaying the real property."
The California Police Chiefs Association writes, "We share
your goal of extending liability for wrongful occupation of
real property and damages to a person who without permission
operates a [UAS] below the navigable airspace (lower than 350
feet) overlaying real property?[UAS] technology is evolving
rapidly and it is important that our civil laws be updated to
protect our citizens' privacy. At the same time, it is also
important that we not impede legitimate law enforcement
investigations that may utilize [UAS] technology. We believe
that your SB 142, as amended, strikes the necessary balance."
10)Arguments in opposition . According to the California State
Association of Counties(CSAC) Excess Insurance Authority,
which provides insurance to California counties, "public
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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 [UAS].
Thus, if this bill is passed, anytime a public entity operates
an [UAS], it will be subject to one or more claims for damages
from persons who own the real property over which the [UAS] is
flying."
11)Related legislation . AB 14 (Waldron) creates the Unmanned
Aircraft Systems Task Force, comprised of 10 members. AB 14
failed passage in the Assembly Transportation Committee on a
5-9 vote.
AB 56 (Quirk) regulates the use of UAS by public agencies,
including law enforcement. AB 56 passed the Assembly on a
61-12 vote and will be heard in the Senate Public Safety
Committee on July 7, 2015.
AB 856 (Calderon) expands 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 856 passed the Assembly on a
78-0 vote and is currently pending in the Senate Judiciary
Committee.
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SB 170 (Gaines) creates a felony crime for the use of a UAS to
deliver contraband into a prison or county jail and creates a
misdemeanor crime for the use of UAS over a prison or capture
images of a prison. SB 170 passed the Senate on a 40-0 vote
and will be heard in the Assembly Privacy and Consumer
Protection Committee on July 7, 2015.
SB 262 (Galgiani) authorizes a law enforcement agency to use a
UAS if it complies with the U.S. Constitution and the
California Constitution, federal law applicable to the use of
UAS by a law enforcement agency, state law applicable to a law
enforcement agency's use of surveillance technology that can
be attached to a UAS, and if the local governing board
approves the use. SB 262 was held in the Senate Judiciary
Committee.
SB 271 (Gaines) prohibits 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 passed the
Senate on a 37-0 vote and will be heard in the Assembly
Privacy and Consumer Protection Committee on July 7, 2015.
12)Prior legislation . AB 1256 (Bloom), Chapter 852, Statutes of
2014, created a cause of action for the capture of a visual
image or sound recording of another person with the use of an
enhanced visual or audio device liable for "constructive"
invasion of privacy, and made it illegal, and subject to civil
liability, to attempt to obstruct, intimidate, or otherwise
interfere with a person who is attempting to enter or exit a
school, medical facility, or lodging, as defined.
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AB 2306 (Chau), Chapter 858, Statutes of 2014, expanded a
person's potential liability for constructive invasion of
privacy, by removing the limitation that the person use a
visual or auditory enhancing device, and instead made the
person liable when using any device to engage in the specified
unlawful activity.
SB 606 (De León), Chapter 348, Statutes of 2013, increased the
penalties for the intentional harassment of a child or ward of
another person because of that person's employment and it
specified that conduct occurring during the attempt to capture
a child's image or voice may constitute harassment if
specified conditions occur.
SB 15 (Padilla) of 2013 would have imposed a search warrant
requirement on law enforcement agency use of a UAS in certain
circumstances, would have applied existing civil and criminal
law to prohibited activities with devices or instrumentalities
affixed to, or contained within a UAS, and would have
prohibited equipping a UAS with a weapon, and would have
prohibited using a UAS to invade a person's privacy. SB 15
failed passage in the Assembly Public Safety Committee.
AB 524 (Bass), Chapter 499, Statutes of 2009, amended the
"invasion of privacy" statute so that a person who sells,
transmits, publishes, or broadcasts an image, recording, or
physical impression of someone engaged in a personal or
familial activity violates the state's "invasion of privacy"
statute. Previously, the statute had only applied to the
person who wrongfully obtained the image, recording, or
physical impression, but not necessarily the entity that sold
or published the image, recording, or impression.
13)Double-referral . This bill was double-referred to the
Assembly Judiciary Committee, where it will be heard if it
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passes this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Police Chiefs Association
Privacy Rights Clearinghouse
Opposition
CSAC Excess Insurance Authority
Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)
319-2200