BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:   July 14, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB 142  
          (Jackson) - As Amended June 30, 2015


          SENATE VOTE:  24-9

          SUBJECT:  CIVIL LAW: UNMANNED AIRCRAFT

          KEY ISSUES:  

          1)SHOULD THE LAW SPECIFY THAT A PROPERTY OWNER HAS THE EXCLUSIVE  
            RIGHT TO OCCUPY AND USE THE AIRSPACE ABOVE HIS OR HER  
            PROPERTY, UP TO AN ELEVATION OF 350 FEET ABOVE THE PROPERTY,  
            AND THAT ENTRY OF AN UNMANNED AIRCRAFT, OR UNMANNED AIRCRAFT  
            SYSTEM, INTO THAT ZONE OF PROTECTED AIRSPACE CONSTITUTES A  
            TRESPASS?


          2)SHOULD THE LAW SPECIFY THAT A PROPERTY OWNER WHOSE PROTECTED  
            AIRSPACE IS VIOLATED BY THE INTRUSION OF AN UNMANNED AIRCRAFT  
            INTO THAT AIRSPACE IS ABLE TO RECOVER EITHER THE COST OF THE  
            DAMAGE TO THE AIRSPACE, OR THE BENEFIT GIVEN TO THE USER OF  
            THE AIRSPACE BY PASSAGE THROUGH THE AIRSPACE, WHICHEVER IS  
            GREATER? 

                                      SYNOPSIS

          This bill would effectively create a no-fly zone for unmanned  
          aircraft and unmanned aircraft systems (UAS, or drones) of 350  
          feet over private property in California.  The protected zone  








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          would extend from the ground up and into the airspace above the  
          property, to an elevation of 350 feet above the property.  The  
          author states that it is her intent to "clarify that the  
          operation of an unmanned aerial vehicle below 350 feet overlying  
          the property of another without permission could constitute a  
          trespass."  SB 142 appears to establish a new and unusual  
          definition of trespass.  Under common law, property owners have  
          the right of exclusive control to some, but not all, of the  
          airspace above their land.  This bill establishes the concept  
          that an owner of real property has the right to the exclusive  
          control of airspace over his or her property, up to an elevation  
          of 350 feet above the property, regardless of whether the owner  
          is using the airspace.  Furthermore, it establishes this zone of  
          private protected airspace extending up to an elevation where it  
          is unlikely that property owners could either use or occupy all  
          of the airspace beneath it.  Nevertheless, despite the zone of  
          protected airspace that the bill would create if it became law,  
          the right to the airspace above a person's land would still be  
          subject to both the state doctrine of overflight and federal  
          regulations.  So despite a zone of protection above private  
          property, because of federal regulations, a landowner would not  
          necessarily have the right of exclusive occupation and use of  
          his or her airspace.  For example, FAA regulations consider a  
          building that is 200 feet above ground level, or higher, within  
          three nautical miles of an airport to be an obstruction into  
          federal airspace.  


          The bill provides specific exemptions for "any otherwise lawful  
          activities of law enforcement personnel or employees of  
          governmental agencies or other public or private entities that  
          may have the right to enter land by operating an unmanned  
          aircraft or unmanned aircraft system within the airspace  
          overlaying the real property of another."  It also establishes  
          that a person who wrongfully occupies the airspace above real  
          property by operating a drone in the airspace is liable for  
          damages pursuant to Section 3334 of the Civil Code.  That  
          section states that damages for the "wrongful occupation of real  
          property" is the greater of the reasonable rental value of that  








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          property, or the benefits obtained by the person wrongfully  
          occupying the property by reason of that wrongful occupation,  
          which anticipates that the use of a person's property is  
          prolonged enough that a value can be placed upon its use.   
          Unlike traditional cases of trespass in which the property is  
          used (or damaged) for a period of time that is prolonged enough  
          to allow the value of use (or damage) to be calculated, it would  
          be difficult to assess what tangible harm would be caused by the  
          flight of a drone 349 feet over a person's property.  Supporters  
          say that "UVA technology is evolving rapidly and it is important  
          that our civil laws be updated to protect our citizens'  
          privacy."  Meanwhile, the Association for Unmanned Vehicle  
          Systems International (AUVSI), in opposition to the bill, writes  
          that SB 142 would "have an adverse impact on an industry that  
          wants to be regulated and takes safety, risk and liability  
          seriously."  This bill, which is author-sponsored, recently  
          passed the Assembly Privacy and Consumer Protection Committee by  
          a vote of 11-0.


          SUMMARY:  Specifies that the operation of an unmanned aircraft  
          at an elevation that is 350 or less above the property of  
          another without permission constitutes a trespass.   
          Specifically, this bill:  


          1)Provides that a person wrongfully occupies the real property  
            and is liable for damages if, without the express permission  
            of the person with the legal authority to grant access or  
            without legal authority, he or she operates an unmanned  
            aircraft or unmanned aircraft system less than 350 feet above  
            ground level within the airspace overlaying the real property.


          2)Provides the following definitions:


             a)     "Unmanned aircraft" means an aircraft that is operated  
                 without the possibility of direct human intervention from  








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                 within or on the aircraft.

             b)     "Unmanned aircraft system" means an unmanned aircraft  
                 and associated elements, including communication links  
                 and the components that control the unmanned aircraft,  
                 that are required for the pilot in command to operate  
                 safely and efficiently in the national airspace system.

             c)     "Aircraft" does not include an unmanned aircraft that  
                 is operated without the possibility of direct human  
                 intervention from within or on the aircraft.




          1)Provides that the provisions of the bill shall not be  
            construed to impair or limit any otherwise lawful activities  
            of law enforcement personnel or employees of governmental  
            agencies or other public or private entities that may have the  
            right to enter land by operating an unmanned aircraft or  
            unmanned aircraft system within the airspace overlaying the  
            real property of another.




          2)Provides that the bill is not intended to limit the rights and  
            defenses available at common law under a claim of liability  
            for wrongful occupation of real property.


          EXISTING LAW:  


          1)Pursuant to 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.  (49  
            U.S.C. 40102(a)(32).)








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          2)Provides that "[l]and is the material of the earth, whatever  
            may be the ingredients of which it is composed, whether soil,  
            rock, or other substance, and includes free or occupied space  
            for an indefinite distance upwards as well as downwards,  
            subject to limitations upon the use of airspace imposed, and  
            rights in the use of airspace granted, by law."  (Civil Code  
            Section 659.)


          3)Provides that ownership of the space above the land and waters  
            of this State is vested in the several owners of the surface  
            beneath, subject to the right of flight.  (Public Utilities  
            Code Section 21402.)


          4)Provides that the detriment caused by the wrongful occupation  
            of real property, among other things, 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.  (Code of Civil Procedure  
            Section 3334 (a).)


          5)Provides that, except as specified in #2, above, the value of  
            the use of the property shall be the greater of the reasonable  
            rental value of that property or the benefits obtained by the  
            person wrongfully occupying the property by reason of that  
            wrongful occupation and that if a wrongful occupation of real  
            property subject to this section is the result of a mistake of  
            fact of the wrongful occupier, the value of the use of the  
            property, for purposes of #2, above, shall be the reasonable  
            rental value of the property.  (Code of Civil Procedure  
            Section 3334 (b).)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.









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          COMMENTS:  Property rights in California include rights to the  
          "free or occupied space [above the property] for an indefinite  
          distance upwards as well as downwards, subject to limitations  
          upon the use of airspace imposed, and rights in the use of  
          airspace granted, by law."  (Civil Code Section 659.  All  
          further statutory references are to this code, unless otherwise  
          indicated.)  The right to the airspace above this state is  
          vested in the owners of the land below, but is subject to both  
          the state doctrine of overflight and federal regulations.   
          (Drennen v. County of Ventura (1974) 38 Cal.App.3d 84, 87,  
          citing Pub. Util. Code Section 21402, Civil Code Section 659.)    



          The author states that it is her intent to "clarify that the  
          operation of an unmanned aerial vehicle below 350 feet overlying  
          the property of another without permission could constitute a  
          trespass."  According to the author: 


               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.


          It is worth noting that the bill's prohibition upon entry by UAS  
          into personal airspace is not tied to any annoying, offensive,  
          or invasive conduct by the device (i.e. harassing animals,  
          hovering at a low altitude, taking photographs), or any unlawful  
          or obnoxious intent of the operator (i.e. to invade privacy,  
          harass animals, or repeated flyovers).  










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          SB 142 provides specific exemptions for "any otherwise lawful  
          activities of law enforcement personnel or employees of  
          governmental agencies or other public or private entities that  
          may have the right to enter land by operating an unmanned  
          aircraft or unmanned aircraft system within the airspace  
          overlaying the real property of another."



          History of Reluctance by Courts to Establish a Line in the Air,  
          Below Which Property Owners Have Exclusive Rights.  The Ninth  
          Circuit, in Hinman v. Pacific Air Transport (9th Cir. 1936) 84  
          F.2d 755, 758, ridiculed as "utterly impractical" and "at  
          variance with the reason of law," the idea that a property owner  
          could have the right to exclude all aircraft from flying over  
          his or her property.  In Hinman, the plaintiff owned 72 acres of  
          land in Burbank that were adjacent to an airport.  The plaintiff  
          sued the operators of commercial airlines at the airport,  
          alleging that defendants "disturbed, invaded and trespassed upon  
          the ownership and possession of plaintiffs' tract"; that at said  
          times defendants have operated aircraft in, across, and through  
          said airspace at altitudes less than 100 feet above the  
          surface."  (Id. at p. 758 [emphasis added].) 


               If such a rule were conceivable, how will courts protect  
               the various landowners in their varying claims of portions  
               of the sky? How enforce a right of ejectment or  
               restitution? Such a rule is not necessary for the  
               protection of the landowner in any right guaranteed him by  
               the Constitution in the enjoyment of his property. If a  
               right like this were recognized and upheld by the courts,  
               it would cause confusion worse confounded. It is opposed to  
               common sense and to all human experience. 


               We cannot shut our eyes to the practical result of legal  
               recognition of the asserted claims of appellants herein,  
               for it leads to a legal implication to the effect that any  








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               use of airspace above the surface owner of land, without  
               his consent would be a trespass either by the operator of  
               an airplane or a radio operator. We will not foist any such  
               chimerical concept of property rights upon the  
               jurisprudence of this country.  (Hinman v. Pacific Air  
               Transport, supra, at p. 759.) 


          The court only seemed to take the plaintiff's claims seriously  
          when it considered allegations that the aircraft were flying as  
          low as five feet above the plaintiff's land: 


               We now consider the allegation of the bill that appellees'  
               airplanes, in landing, glide through the air, within a  
               distance of less than 100 feet to the surface of  
               appellants' land, or possibly to a distance within five  
               feet thereof, at one end of his tract. This presents  
               another question for discussion. Whether such close  
               proximity to appellants' land may constitute an impairment  
               of his full enjoyment of the same is a question of fact.   
               If it does, he may be entitled to relief in a proper case.   
               (Id. at p. 759.) 

          Likewise, the U.S. Supreme Court, in the case of United States  
          v. Causby (1946) 328 U.S. 256, 261, recognized "that the  
          airspace is a public highway," so the owner of the property  
          below only has exclusive control of the space immediately above  
          the land.  Like the court in Hinman, the Court declined to  
          delineate the boundary between public and private airspace.   
          (United States v. Causby, supra, 328 U.S., at p. 266 ["we need  
          not determine at this time what those precise limits are"].)   
          However, the Court did at least recognize on the facts  
          particular to that case that Causby's property interests were  
          encroached upon by military aircraft flying 83 feet above their  
          land.  (Id. at p. 258 [emphasis added].)  Causby and Hinman show  
          how reluctant courts are to recognize trespass in the airspace  
          above real property.  There is no precedent in common law for  
          recognizing a zone of protected air space above private property  








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          higher than 100 feet above the real property that would allow  
          the owner of the property the right of exclusive use and  
          occupation of that airspace.


          This Bill Appears to Create a New and Unusual Definition of  
          Trespass.  Under common law, property owners have the right of  
          exclusive control to some, but not all, of the airspace above  
          their land.  The right of an owner to exert exclusive control  
          generally correlates to the area of airspace that the property  
          owner is able to "occupy and use."  Therefore, the property  
          owner's rights are only violated in cases where there is a  
          "direct and immediate interference" with the owner's use of the  
          airspace above his or her land, which constitutes an "intrusion  
          so immediate and direct as to subtract from the owner's full  
          enjoyment of the property and to limit his exploitation of it."   
          (United States v. Causby, supra, 328 U.S. at p. 265.) 




          This bill establishes a new legal concept: that an owner of real  
          property has the right to the exclusive control of airspace over  
          his or her property, up to an elevation of 350 feet above the  
          property, regardless of whether the owner can or does use the  
          airspace.  Furthermore, it establishes this zone up to an  
          elevation where it is unlikely that property owners could either  
          use, or occupy all of the airspace beneath it.  For purposes of  
          comparison, the top of the Capitol is 247 feet high.  Therefore,  
          a drone flying 100 feet above the top of the Capitol - which  
          would likely be barely visible to the naked eye - would still be  
          at an elevation low enough to be trespassing in the airspace of  
          a property owner (if it were over private property). 


          In support of the 350-foot demarcation, the author writes: 


               The 350 foot height limit was chosen because to exclude  








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               drones that are operated in a manner that invades privacy.  
               While this height limit will not address all potential  
               harms and privacy concerns, the limit represents a good  
               balance between privacy while allowing for zone for  
               operation. Interfering with a landowner's right to enjoy  
               their property would be very minimal and the limit is high  
               enough to limit the use of technology to invade privacy.  
               Meanwhile, there is a legally permissible corridor for  
               unmanned aircraft systems to fly. The purpose is set  
               expectations about where unmanned aircraft systems should  
               fly in a way that does not invade privacy or private  
               property rights. 


          Given that common law seems to support a cause of action for  
          trespass into the airspace above private property at an  
          elevation of more than 100 feet above the real property, the  
          Committee may wish to inquire whether a lower height, perhaps  
          closer to 100 feet, would more closely align with common law  
          precedent regarding trespass.


          Damages for Trespass Under SB 142 and Under Common Law.  SB 142  
          provides that, under specified circumstances, a "person  
          wrongfully occupies real property and is liable for damages  
          pursuant to Section 3334."  Section 3334 provides that, for the  
          determination of damages caused by the "wrongful occupation of  
          real property" (other than cases of eminent domain and unlawful  
          detainer), 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.  (Section  
          3334(a).)  The value of the use of property is the greater of  
          the reasonable rental value of that property, or the benefits  
          obtained by the person wrongfully occupying the property by  
          reason of that wrongful occupation.  (Section 3334 (b)(1).)   
          Therefore, Section 3334 anticipates that the use of a person's  
          property is generally prolonged enough that a value can be  
          placed upon its use: for example, a tenant who outstays the  
          expiration of a lease, a squatter in a vacant house, or even a  








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          source of contamination left by a former owner.  (See 9201 San  
          Leandro LLC v. Precision Castparts Corp. (N.D. Cal. 2008) 548 F.  
          Supp. 732.)  Damages in these cases are quantifiable, based upon  
          either the harm to the property (i.e. the cost of removing and  
          cleaning contaminants left on property), or the benefit to the  
          user (i.e. the fair market value of a renter staying in the  
          apartment, or a squatter staying in a vacant house).  Similarly,  
          flights less than one hundred feet above the plaintiff's land in  
          Causby had a direct and substantial impact on the land  
          (specifically, the chickens on the land), thus qualifying as a  
          taking:


               Since the United States began operations in May, 1942, its  
               four-motored heavy bombers, other planes of the heavier  
               type, and its fighter planes have frequently passed over  
               respondents' land buildings in considerable numbers and  
               rather close together. They come close enough at times to  
               appear barely to miss the tops of the trees, and at times  
               so close to the tops of the trees as to blow the old leaves  
               off. The noise is startling. And, at night, the glare from  
               the planes brightly lights up the place. As a result of the  
               noise, respondents had to give up their chicken business.  
               As many as six to ten of their chickens were killed in one  
               day by flying into the walls from fright. The total  
               chickens lost in that manner was about 150. Production also  
               fell off. The result was the destruction of the use of the  
               property as a commercial chicken farm. Respondents are  
               frequently deprived of their sleep, and the family has  
               become nervous and frightened. Although there have been no  
               airplane accidents on respondents' property, there have  
               been several accidents near the airport and close to  
               respondents' place. These are the essential facts found by  
               the Court of Claims. On the basis of these facts, it found  
               that respondents' property had depreciated in value. (P.  
               259)


          Unlike the extremely low and loud flights in Causby, and the  








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          contaminants left behind in 9201 San Leandro LLC, it is  
          difficult to assess what tangible harm would be caused by the  
          flight of a drone at an elevation of 349 feet over a person's  
          property.  What is the value of airspace used for seconds, or  
          perhaps even a minute, as a drone passes above a person's  
          property?  What benefit would a drone operator gain from passing  
          through a person's property?  How could either the damage to the  
          airspace, or the benefit to the user of the airspace, be  
          quantified?   


          As an alternative to the uncertain and difficult to quantify  
          damages pursuant to Section 3334, the author may wish to  
          consider specifying other damages for violations of trespass  
          into private airspace, such as a fine (i.e. $250 per entry),  
          injunctive relief, and possibly disgorgement of profits. 
                                                                       

          Federal Regulation of Overflight.  Federal law provides that  
          "any citizen of the United States [has] a public right of  
          freedom of transit through the navigable airspace of the United  
          States."  (49 U.S.C. 1304.)  Federal regulations provide for a  
          "minimum safe altitude" which varies based on place and type of  
          conditions.  Section 119 of Part 91 of the Federal Aviation  
          Regulations (FAR) provides that, "Except when necessary for  
          takeoff or landing, no person may operate an aircraft below the  
          following altitudes:"


               (a) Anywhere.  An altitude allowing, if a power unit fails,  
               an emergency landing without undue hazard to persons or  
               property on the surface.


               (b) Over congested areas. Over any congested area of a  
               city, town, or settlement, or over any open air assembly of  
               persons, an altitude of 1,000 feet above the highest  
               obstacle within a horizontal radius of 2,000 feet of the  
               aircraft.








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               (c) Over other than congested areas. An altitude of 500  
               feet above the surface, except over open water or sparsely  
               populated areas. In those cases, the aircraft may not be  
               operated closer than 500 feet to any person, vessel,  
               vehicle, or structure.


               (d) Helicopters, powered parachutes, and  
               weight-shift-control aircraft. If the operation is  
               conducted without hazard to persons or property on the  
               surface.


                 (1) A helicopter may be operated at less than the  
                 minimums prescribed in paragraph (b) or (c) of this  
                 section, provided each person operating the helicopter  
                 complies with any routes or altitudes specifically  
                 prescribed for helicopters by the FAA; and


                 (2) A powered parachute or weight-shift-control aircraft  
                 may be operated at less than the minimums prescribed in  
                 paragraph (c) of this section.  [Docket No. 18334, 54 FR  
                 34294, Aug. 18, 1989, as amended by Amdt. 91-311, 75 FR  
                 5223, Feb. 1, 2010]


          As mentioned above, Drennen v. County of Ventura, provides that  
          the right to the airspace above a person's land is subject to  
          both the state doctrine of overflight and federal regulations.   
          (County of Ventura, supra, 38 Cal.App.3d at p. 87, citing Public  
          Utilities Code Section 21402 and Civil Code Section 659.)  For  
          example, FAA regulations consider a building that is 200 feet  
          above ground level, or higher, within 3 nautical miles of an  
          airport to be an obstruction into federal airspace.  (14 C.F.R.  
          § 77.17(a)(2) (2015).)  Landowners within that zone must also,  
          if requested by the FAA, notify the FAA of any construction or  








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          alteration of a structure that could impede air travel, such as  
          a structure that is more than 200 feet above ground level, or  
          even an antenna that is more than 20 feet tall.  (14 C.F.R. §§  
          77.9(a), 77.9 (e)(4) (2015).)  Therefore, even if the bill  
          created a zone of protection above private property, because of  
          federal regulations, a landowner would not necessarily have the  
          right of exclusive occupation and use of that airspace.  


          Federal Regulation of "Drones."  Congress effectively closed the  
          national airspace to commercial drone flights in the Federal  
          Aviation Administration (FAA) Modernization and Reform Act of  
          2012 (Act).  (H.R.658, 112th Congress (2011-2012).)  The 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.  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.  (See Section 334 of the Act.)


          Unlike commercial drone operations, flying a UAS "strictly for  
          hobby or recreational use" is allowed today, as long as the  
          operator pilots the craft in accordance with specific safety  
          rules.  (See Section 336 of the Act.)  As a result, private  
          citizens pilot most of the drones that are in use 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.  (Id.)  Under a  
          1981 FAA advisory circular (AC 91-57), the FAA authorized the  








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          use of "small" aircraft (under 55 pounds) for recreational  
          purposes without a certificate of authorization (basically a  
          permit) from the FAA, as long as the aircraft 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 an elevation of 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 drone.  The FAA has suggested that it may  
          create a less strict regulatory framework for "micro" unmanned  
          aircraft (under 4.4 pounds).  


          While the proposed FAA rules could potentially preempt state law  
          (i.e. to the extent that it would be impossible to comply with  
          both state law and the FAA regulations), this bill would  
          establish a property right in the airspace up to 350 feet  
          directly above private property, so that drones 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 drone could travel over private  
          property from one place to another without entering  
          FAA-regulated national airspace."  


          Other remedies available to property owners subject to  
          overflight.  Explaining the need for the bill, the author states  
          that: 


               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  








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               long-established definitions of trespassing and privacy,  
               and brings them into the 21st century by applying them to  
               drones. 


          Current law provides alternative ways to address the risks posed  
          by drones to the quiet enjoyment of private property, as well as  
          privacy.


          Nuisance is an interference with the use and enjoyment of the  
          land as opposed to trespass, which "involves physical damage or  
          tangible intrusion.  All intangible intrusions, such as noise,  
          odor, or light alone, are dealt with as nuisance cases."   
          (11-384 California Real Estate Law & Practice Section 384.01.)    
          A nuisance is defined as follows:


               Anything which is injurious to health, including, but not  
               limited to, the illegal sale of controlled substances, or  
               is indecent or offensive to the senses, or an obstruction  
               to the free use of property, so as to interfere with the  
               comfortable enjoyment of life or property, or unlawfully  
               obstructs the free passage or use, in the customary manner,  
               of any navigable lake, or river, bay, stream, canal, or  
               basin, or any public park, square, street, or highway, is a  
               nuisance.  (Section 3479.)


          The statutes distinguish between a "private nuisance" (which  
          usually affects just one person) and a "public nuisance" (which  
          affects a whole community or neighborhood), either of which  
          could be implicated by the operation of a drone in a manner that  
          is bothersome or invasive.  Flying a drone over a person's  
          private property could certainly be a private nuisance, since it  
          could be an obstruction or interference with free use and/or  
          comfortable enjoyment of property.  










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          Constructive invasion of privacy occurs when a person attempts  
          to capture, in a manner that is offensive to a reasonable  
          person, any type of visual image, sound recording, or other  
          physical impression of another person engaging in a private,  
          personal, or familial activity, through the use of any device if  
          the image, sound recording, or other physical impression could  
          not have been achieved without the device, regardless of whether  
          there is a physical trespass.  Assembly Bill 2306 (Chau, Chap.  
          858, Stats. 2014) amended subdivision (b) of Section 1708.8 to  
          provide that a "constructive" invasion of the privacy occurs  
          "whether one uses enhanced or unusually powerful lenses to  
          capture the image from afar, or whether one captures the image  
          by the use of some other device, does not particularly matter.   
          The critical requirement is that a device allowed the capturing  
          of an image that otherwise could only have been obtained with a  
          physical trespass."  Constructive invasion of privacy occurs  
          when the defendant attempts to capture, in a manner that is  
          offensive to a reasonable person, any type of visual image,  
          sound recording, or other physical impression of the plaintiff  
          engaging in a private, personal, or familial activity, through  
          the use of any device, regardless of whether there is a physical  
          trespass, if this image, sound recording, or other physical  
          impression could not have been achieved without a trespass  
          unless the device was used.  (Section 1708.8(b).)  


          Although the author's well-intentioned goal is to protect  
          privacy, there is no requirement in the bill that the unmanned  
          aircraft must enter into the plaintiff's airspace with the  
          intent to intrude upon the plaintiff's privacy, or that it  
          actually does something to invade the plaintiff's privacy.  


          ARGUMENTS IN SUPPORT:  According to the California Police Chiefs  
          Association, "UVA 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 UVA technology.  We believe that your SB 142, as  








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          amended, strikes the necessary balance." 


          ARGUMENTS IN OPPOSITION:  The Association for Unmanned Vehicle  
          Systems International (AUVSI), in opposition to the bill, writes  
          that SB 142 would "have an adverse impact on an industry that  
          wants to be regulated and takes safety, risk and liability  
          seriously."  AUVSI makes the following specific objections to  
          the bill, alleging that "[a]s written, SB 142 would do the  
          following:


                     All but bans the operation of any UAV at low  
            altitudes. The bill as written requires consent from a  
            landowner to operate a UAV over real property below 350 feet.  
            Requiring consent from individual landowners for emerging  
            applications of small UAVs that traverse low-altitude  
            airspace, would be nearly impossible from an operational  
            perspective;


                     Create inconsistencies with Federal Law. This type  
            of property right over the airspace was resoundingly rejected  
            by the Supreme Court in United States v. Causby, which held  
            that property rights do not extend infinitely into the sky;


                     Adversely impact the UAS community, instead of  
            focusing on bad actors, operating out of compliance with FAA  
            authorization. The bill should clarify that the "legal  
            authority" standard could be met by operating in a manner  
            consistent with FAA authorizations or regulations, or by  
            explicitly exempting operations that are conducted in a manner  
            consistent with FAA authorizations or regulations.


          AUVSI recommends that the bill be amended to "provide the clear  
          legal authority for UAS use in the bill," and specifically  
          suggests that the following be exempt from its provisions: "an  








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          entity which has received an authorization, certification,  
          experimental certificate, or waiver issued by the Federal  
          Aviation Administration (FAA) pursuant to Section 333 in the FAA  
          Modernization and Reform Act of 2012."


          CONCERN:  TechNet writes that "While the stated intent of the  
          bill, to protect individual privacy against intrusive,  
          eavesdropping activity, is a sensible and achievable policy  
          goal, as written, it could severely restrict legitimate uses of  
          this developing technology."


          Similar Pending Legislation.  AB 856 (Calderon) provides that a  
          person is liable for physical invasion of privacy when the  
          defendant knowingly enters "into the airspace" above the land of  
          another person without permission.  In order to be actionable,  
          AB 856 requires that such entry must be made 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.


          Prior Related Legislation.  AB 1256 (Bloom, Chap. 852, Stats.  
          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.


          AB 2306 (Chau, Chap. 858, Stats. 2014) amended the Civil Code  
          prohibition against "constructive" invasion of privacy by taking  
          account of new technologies, including but not limited to  
          unmanned aerial devices (or "drones"), that could permit an  
          invasion of privacy without a physical trespass even though the  








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          device might not qualify as a "visual or auditory enhancing  
          device," a term that was not defined in the existing statute.


          SB 606 (De Leon, Chap. 348, Stats. 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, 2103) would have required law enforcement to  
          obtain a warrant before using an unmanned aircraft under  
          circumstances that would require a warrant; specifies that any  
          person who uses a drone to capture the visual image, sound  
          recording, or other physical impression of another person, under  
          specified conditions, is liable for constructive invasion of  
          privacy; and imposes other restrictions on drone use.  (Failed  
          passage in Assembly Public Safety Committee.)


          AB 2479 (Bass, Chap. 685, Stats. 2010) provided that a person  
          who commits "false imprisonment" with the intent to capture any  
          type of visual image, sound recording, or other physical  
          impression of a plaintiff is subject to liability under the  
          civil invasion of privacy statute and, as such, liable for  
          damages and remedies available pursuant to that statute.  This  
          bill also amended the Vehicle Code to create heightened  
          penalties for persons who engaged in unlawful forms of reckless  
          driving while attempting to capture a visual image of another  
          person.  


          AB 524 (Bass, Chap. 499, Stats. 2009) amended the "invasion of  
          privacy" statute (Civil Code Section 1708.8) 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  








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          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.  


          





          REGISTERED SUPPORT / OPPOSITION:




          Support


          American Chemistry Council


          California Police Chiefs Association


          Privacy Rights Clearinghouse


          Several individuals




          Opposition


          Association for Unmanned Vehicle Systems International (AUVSI)
          CSAC Excess Insurance Authority








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                                                                    Page  22







          Concern


          TechNet




          Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334