BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 142|
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VETO
Bill No: SB 142
Author: Jackson (D), et al.
Amended: 6/30/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-1, 4/7/15
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Anderson
NO VOTE RECORDED: Vidak
SENATE FLOOR: 24-9, 5/4/15
AYES: Allen, Bates, Beall, Block, De León, Gaines, Hall,
Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva,
Liu, McGuire, Mendoza, Mitchell, Monning, Nguyen, Pan, Roth,
Wieckowski
NOES: Anderson, Fuller, Huff, Moorlach, Morrell, Nielsen,
Runner, Stone, Vidak
NO VOTE RECORDED: Berryhill, Cannella, Galgiani, Hancock,
Pavley, Wolk
SENATE FLOOR: 21-12, 8/27/15
AYES: Allen, Beall, De León, Gaines, Hancock, Hertzberg,
Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza,
Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk
NOES: Anderson, Berryhill, Cannella, Fuller, Galgiani, Glazer,
Hill, Huff, Morrell, Runner, Stone, Vidak
NO VOTE RECORDED: Bates, Block, Hall, Hernandez, Moorlach,
Nguyen, Nielsen
ASSEMBLY FLOOR: 56-13, 8/24/15 - See last page for vote
SUBJECT: Civil law: unmanned aerial vehicles
SOURCE: Author
SB 142
Page 2
DIGEST: This bill states that the operation of an unmanned
aerial vehicle less than 350 feet above the ground in the
airspace overlying the property of another without permission or
legal authority constitutes trespass. This bill specifies that
it does not impair or limit existing rights of law enforcement
personnel, employees of governmental agencies, or other public
or private entities to enter land by operating an unmanned
aerial vehicle within the airspace overlaying the real property
of another.
ANALYSIS:
Existing law:
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. (Cal. Const, art. I, Sec. 1.)
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. (Civ. Code
Sec. 3333.)
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. (Civ. Code Sec. 3334.)
SB 142
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This bill:
1)Provides that a person wrongfully occupies real property and
is liable for damages if, without express permission of the
person or entity 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)Specifies that 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, as specified.
3)Specifies 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.
4)Specifies that unmanned aerial vehicles are not "aircraft" for
the purposes of the State Aeronautics Act. (Pub. Util. Code
Sec. 21001, et seq.)
5)Defines the following terms:
"Unmanned aircraft" means an aircraft that is operated
without the possibility of direct human intervention from
within or on the aircraft.
"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.
SB 142
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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.
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
SB 142
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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 community-based safety guidelines,
but the lack of more comprehensive rules establishing clear
boundaries for when, where, and how these craft may 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 -
Private Ownership, Not So Much: Poll
Page 6
Existing law protects the privacy of California residents in
their homes both by prohibiting others from entering onto
private land without permission, and by prohibiting attempts
to capture images or recordings of individuals engaged in
personal or familial activities in situations where they have
a reasonable expectation of privacy. This bill clarifies how
long-standing principles of trespass and privacy apply to
unmanned aircraft, also known as 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 explicitly provides that operating an
unmanned aerial vehicle without permission 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.
The development of drone technology has challenged the way we
think about trespass and invasion of privacy. No longer is
trespass limited to activities occurring at ground level.
Drones can effortlessly fly over fences and other structures
meant to exclude others, allowing individuals via their aerial
vehicles to invade areas of the home traditionally protected
from outside eyes and ears.
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.
SB 142
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Related/Prior Legislation
SB 168 (Gaines and Jackson, 2015) provides specified emergency
responders with immunity from civil liability for any damage to
an unmanned aircraft system, if the damage was caused while the
emergency responder was providing, and the unmanned aircraft
system was interfering with, the operation, support, or enabling
of specified emergency services. This bill also makes it
unlawful to knowingly, intentionally, or recklessly operate an
unmanned aircraft or unmanned aircraft system in a manner that
prevents or delays the extinguishment of a fire, or in any way
that interferes with the efforts of firefighters to control,
contain, or extinguish a fire, as specified. The bill was
vetoed by Governor Brown.
SB 170 (Gaines, 2015) provides that a person who knowingly and
intentionally operates an unmanned aircraft on or above the
grounds of a state prison or a jail is guilty of a misdemeanor,
except as specified. The bill was vetoed by Governor Brown.
SB 262 (Galgiani, 2015) authorizes law enforcement agencies to
use unmanned aircraft systems provided such use complies with
certain conditions, including: search and seizure protections in
the U.S. and California Constitutions; federal law applicable to
unmanned aircraft systems; and state law applicable to law
enforcement agency use of surveillance technology. The bill
also requires law enforcement agencies to receive approval from
their local governing body prior to using unmanned aircraft
systems, and restricts the use of such systems for conducting
surveillance of private property. The bill is pending in the
Senate Judiciary Committee.
SB 271 (Gaines, 2015) makes it an infraction to operate an
unmanned aircraft on the grounds of, or less than 350 feet above
ground level within the airspace overlaying, a public school
providing instruction in kindergarten or grades 1 to 12 during
school hours and without permission of school officials. The
bill exempts specified media and news personnel unless they
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receive a request from school officials to cease using an
unmanned aircraft above a school, and also exempts law
enforcement personnel. The bill was vetoed by Governor Brown.
AB 14 (Waldron, 2015) creates the Unmanned Aircraft Systems Task
Force, which is required to research, develop, and formulate a
comprehensive policy for unmanned aircraft systems in
California. The task force is 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 reconsideration
in the Assembly Transportation Committee.
AB 56 (Quirk, 2015) prohibits law enforcement agencies from
using unmanned aircraft systems, or contracting for the use of
these systems, unless the law enforcement agency complies with
specified requirements, including the development of a policy
concerning the use of the system. The bill prohibits a law
enforcement agency from using an unmanned aircraft system to
surveil private property without a warrant, and requires images,
footage, or data obtained through the use of such a system to be
permanently destroyed within one year, except as specified. The
bill is pending on the Senate Floor inactive file.
AB 856 (Calderon, Chapter 521, Statutes of 2015) renders a
person liable for physical invasion of privacy when that person
knowingly enters upon the land of another, including by entry
into the airspace above the land, without permission in order to
capture any type of visual image, sound recording, or other
physical impression of a person engaging in a private, personal,
or familial activity and the invasion occurs in a manner that is
offensive to a reasonable person.
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
SB 142
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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
hearing was cancelled at the author's request.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified11/10/15)
American Chemistry Council
California Police Chiefs Association
City of Camarillo
Privacy Rights Clearinghouse
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OPPOSITION: (Verified11/10/15)
Academy of Model Aeronautics
Association for Unmanned Vehicle Systems International
California Chamber of Commerce
Consumer Electronics Association
CSAC Excess Insurance Authority
DJI Technologies
GoPro
Small UAV Coalition
TechNet
ARGUMENTS IN SUPPORT: According to the City of Camarillo,
"unmanned aerial vehicle (UAV) technology is evolving rapidly
and it is important that our civil laws be updated to protect
our citizens' privacy. Concurrently, it is also important that
we not impede lawful activities of law enforcement personnel and
employees of government agencies that may utilize UAV
technology. We believe that SB 142, as amended, strikes the
necessary balance."
ARGUMENTS IN OPPOSITION: According to the California Chamber
of Commerce, the 350-foot limitation proposed in SB 142
significantly restricts the available airspace for drones, and
could directly interfere with many ongoing collaborative efforts
between federal, state and private entities working on
efficiency and safety protocols for these vehicles. Lawsuits
brought under SB 142 could be successfully completed even if the
violations were unintentional or incidental, and creating a
350-foot line in airspace does not protect consumer's privacy
nor prevent harassment.
GOVERNOR'S VETO MESSAGE:
I am returning Senate Bill 142 without my signature.
SB 142
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This bill would enact trespass liability for anyone flying
a drone less than 350 feet above real property without the
express permission of the property owner, whether or not
anyone's privacy was violated by the flight.
Drone technology certainly raises novel issues that merit
careful examination. This bill, however, while
well-intentioned, could expose the occasional hobbyist and
the FAA-approved commercial user alike to burdensome
litigation and new causes of action.
Before we go down that path, let's look at this more
carefully.
ASSEMBLY FLOOR: 56-13, 8/24/15
AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Brough, Brown,
Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper,
Dababneh, Dahle, Dodd, Eggman, Beth Gaines, Gallagher,
Cristina Garcia, Eduardo Garcia, Gatto, Gomez, Gonzalez,
Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim,
Lackey, Levine, Lopez, Low, Maienschein, Mayes, McCarty,
Melendez, Nazarian, O'Donnell, Patterson, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Weber, Wilk, Williams, Wood, Atkins
NOES: Travis Allen, Chávez, Gipson, Grove, Hadley, Jones,
Mathis, Medina, Mullin, Obernolte, Perea, Ting, Wagner
NO VOTE RECORDED: Bigelow, Bonta, Chang, Daly, Frazier, Gordon,
Gray, Linder, Olsen, Quirk, Waldron
Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
11/13/15 16:03:42
**** END ****
SB 142
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