BILL ANALYSIS Ó SB 168 Page 1 Date of Hearing: September 11, 2015 ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION Mike Gatto, Chair SB 168 (Gaines) - As Amended September 10, 2015 SENATE VOTE: 39-0 SUBJECT: Unmanned aircraft systems. SUMMARY: Increases fines for unmanned aircraft system (UAS) interference with firefighting activities and grants civil immunity to public entities, public employees, and unpaid volunteers and private entities acting within the scope of delegated authority who damage a UAS in the course of providing a variety of emergency services. Specifically, this bill: 1) Specifies in the Civil Code that an emergency responder is not liable for damage to a UAS 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 any of the following emergency services: a) Emergency medical services or ambulance transport services, including, but not limited to, air ambulance services; SB 168 Page 2 b) Firefighting or firefighting-related services, including, but not limited to, air services related to firefighting or firefighting-related services; and c) Search and rescue services, including, but not limited to, air search and rescue services. 2) Defines the term "emergency responder," for purposes of the Civil Code, to mean either of the following, if acting within the scope of authority implicitly or expressly provided by a public entity or a public employee to provide emergency services: a) A paid or unpaid volunteer; or b) A private entity. 3) Specifies in the Government Code that a public entity or public employee is not liable for any damage to a UAS if the damage was caused while the public entity or public employee was providing, and the unmanned aircraft system was interfering with, the operation, support, or enabling of any of the following emergency services: a) Emergency medical services or ambulance transport services, including, but not limited to, air ambulance services; b) Firefighting or firefighting-related services, including, but not limited to, air services related to firefighting or firefighting-related services; and SB 168 Page 3 c) Search and rescue services, including, but not limited to, air search and rescue services. 4) Makes it a misdemeanor 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 interferes with the efforts of firefighters to control, contain, or extinguish a fire, including, but not limited to, efforts to control, contain, or extinguish the fire from the air. 5) Makes a violation of the above prohibition on interference with firefighting efforts punishable by imprisonment in a county jail not to exceed six months, a fine not to exceed $5,000, or both. 6) Defines the term "unmanned aircraft" to mean an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft. 7) Defines the term "unmanned aircraft system" to mean an unmanned aircraft and all of the associated elements, including, but not limited to, 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. 8) Defines the term "recklessly" to mean a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will prevent or delay the extinguishment of a fire, or in any way interfere with the efforts of firefighters to control, contain, or SB 168 Page 4 extinguish a fire, including, but not limited to, efforts to control, contain, or extinguish the fire from the air. The risk shall be of such nature and degree that disregard of that risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of that risk solely by reason of voluntary intoxication also acts recklessly for these purposes. 9) Declares that no reimbursement is required because the only costs that may be incurred by a local agency or school district will be incurred because this bill creates a new crime or infraction, eliminates a crime or infraction, changes the penalty for a crime or infraction, or changes the definition of a crime. 10) Declares that this bill is an urgency measure and shall go into effect immediately to address the interference of UAS with efforts to fight fires and to keep fires from raging out of control during this historic drought, and to protect public and private emergency responders who are providing specific critical emergency services from potential civil liability relating to the new and increasing proliferation of UAS that disrupt the provision of those emergency services. EXISTING LAW: 1)Makes it a misdemeanor to willfully commit any of the following acts at the burning of a building or anywhere firefighters or emergency responders are operating: a) Resist or interfere with the efforts of firefighters or emergency rescue personnel; SB 168 Page 5 b) Disobey the lawful orders of any firefighter or public officer; c) Engage in any disorderly conduct which delays or prevents a fire from being timely extinguished; or d) Forbid, prevent, or dissuade others from assisting in extinguishing a fire. (Penal Code (PC) Section 148.2) 2)Makes it a misdemeanor punishable by a fine of $100 to $1,000 to do any of the following at a forest fire: a) Resist or interfere with the efforts of firefighters; b) Disobey the lawful orders of any firefighter or public officer; c) Engage in any disorderly conduct which is calculated to prevent the fire from being extinguished; d) Forbid, prevent, or dissuade others from assisting in extinguishing a fire; or e) Ride, drive, or propel a vehicle over or across any firehose or chemical hose in use by a firefighter. (Public Resource Code Sections 4165, 4166) 3)Makes it a misdemeanor to go to the scene of an emergency or SB 168 Page 6 stop at the scene of an emergency to watch the scene or the activities of first responders or military personnel if doing so impedes their efforts, unless it is part of the duties of the person's employment to view the scene or activities. (PC 402(a)) 4)Defines an "emergency" as a condition or situation involving injury to persons, damage to property, or peril to the safety of persons or property, which results from a fire, explosion, airplane crash, flooding, windstorm damage, rail accident, traffic accident, power plant accident, toxic chemical or biological spill, or any other natural or human-caused event. (PC 402(c)) 5)Provides that every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights. (Civil Code (CC) Section 1708) 6)Makes a person responsible, not only for the result of a willful act, but also for an injury to another caused by lack of ordinary care or skill in the management of a person's property or person. (CC 1714(a)) 7)Establishes, under the Government Tort Claims Act (Act), rules of civil liability that apply to public entities and public employees in California. (Government Code (GC) Section 810 et seq.) 8)Defines a "public entity" to include the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the SB 168 Page 7 State, and makes all public entities, state and local, liable in tort to the extent declared by statute, subject to stated immunities and defenses. (GC 811.2 and 815 et seq.) 9)Defines a "public employee" as an employee of a public entity and makes public employees liable to the same extent as private persons, subject to various immunities and defenses. (GC 811.4 and 820 et seq.) 10)Generally exempts a public agency, or public employee acting in the scope of his employment, from liability for injury resulting from the condition of fire protection or firefighting equipment or facilities, and for any injury caused fighting fires. (GC 850.4) 11)Requires, under the Federal Aviation Administration (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) FISCAL EFFECT: This bill passed the Senate Appropriations Committee pursuant to Senate Rule 28.8. COMMENTS: 1)Purpose of this bill . This bill is intended to stop civilian UAS from interfering with firefighting and other emergency response activities by increasing the fines for drone interference with firefighting activities and granting civil immunity to public entities, public employees, and unpaid volunteers and private entities acting within the scope of SB 168 Page 8 delegated authority who damage a drone in the line of duty (such as conducting firefighting, air ambulance, and search-and-rescue operations). This bill is sponsored by the League of California Cities and the California Police Chiefs Association. 2)Author's statement . According to the author: "Early in the course of this drought-heightened fire season, private unauthorized drones have repeatedly halted firefighting efforts. The simple presence of these drones has forced firefighters to ground mission-critical tanker aircraft, unnecessarily putting pilots, firefighters, civilians and property at risk. Disruption by drones at all fires-wildfire or otherwise-can have grave consequences and must be severely dealt with in California's code." "[This bill] will also help ensure that emergency responders fighting these fires can do the job of protecting the public without worrying about frivolous lawsuits. As drones become more accessible to the public, their presence in the sky is quickly increasing. It is essential that lifesaving services provided by emergency responders be free to continue despite someone's misplaced desire to capture images for YouTube and the like. It is the author's hope and intent that the advent of effective 'jamming' technology could keep drones away from emergency response areas and flight paths, and that warnings and public education efforts could ensure that the safest, least-damaging methods for avoiding or disabling unauthorized drones will be the primary methods used in these crises. [This bill] is a critical piece of legislation to keep rogue drones from interfering with the most effective response to time-sensitive crises." SB 168 Page 9 3)Growth in commercial and recreational uses of UAS . Commercial applications for UAS are growing exponentially. UAS give 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, has previously said that it plans to seek FAA approval for "PrimeAir" - a new delivery system that would use small UAS to deliver packages instead of 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. UAS are widely available to the public for recreational use. Retail UAS devices outfitted with cameras now range from roughly $300 to $1,500. A July 2015 report by the Consumer Electronics Association estimates that hobbyists in the United States will buy 700,000 drones in 2015 alone. 4)FAA's forthcoming 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 into the national airspace no later than September 30, 2015, and authorized the FAA 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) to operate in in "navigable airspace," which is generally above 500 feet and within five miles of airports. SB 168 Page 10 Under a 1981 FAA advisory circular (AC 91-57), the FAA authorized the use of small UAS 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 (under 55 pounds) 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 stated it may also create a less strict regulatory framework for "micro" UAS (under 4.4 pounds). Of course, such regulations, once enacted, may be found to preempt state statutes governing drone use. 5)Recent drone incidents near wildfires . In July 2015, several hobby UAS operators disrupted firefighting efforts during the initial stage of the North Fire near Cajon Pass. According to the California Department of Forestry and Fire Protection (Cal Fire), as the fire burned toward Interstate 15, which links Southern California to Las Vegas, fire officials were forced to ground firefighting aircraft - efforts that could otherwise have held back the blaze that ultimately destroyed 20 vehicles and forced motorists to flee on foot from oncoming flames. The North Fire is just one of many recent incidents in which hobby drones have caused disruptions in the suppression of California's major wildfires. On July 22, 2015, a drone grounded Cal Fire air support crews that were fighting a grassfire near Auburn in Placer County. Drone operators also interfered with emergency crews at the Mill 2 Fire in Yucaipa on July 12, 2015, and the Lake Fire near Barton Flats on June 17, 2015. SB 168 Page 11 Aerial firefighting aircraft, such as air tankers and helicopters, must fly at very low altitudes in order to be effective. Hobbyists who fly UAS near fires create the potential for a mid-air collision that could injure or kill aerial and ground firefighters as well as innocent bystanders on the ground below. Because of this risk, when firefighters detect a UAS flying over or near a wildfire, air operations must be suspended until all drones flying in a fire area are removed. This delay allows wildfires to grow, and in some cases like the North Fire, such a delay can pose an immediate threat to human lives and property. 6)Penalties for interference with firefighting operations . This bill proposes making it a misdemeanor, carrying a penalty of up to six months jail time and up to $5,000 in fines, to use a UAS in a way that interferes with firefighting. The author contends that the enhanced criminal fines comport with the seriousness of the risk posed by irresponsible UAS use and will discourage hobbyists from using UAS to capture photos of wildfires for social media websites. 7)Civil immunity for damage to drones that interfere with emergency services . This bill also proposes creating immunity from civil liability for damage caused to drones that interfere with emergency services more broadly, including ambulance services, services related to firefighting, and search and rescue operations - whether air, land or water-based - and whether public or private sector emergency responders are involved. Generally speaking, under the Government Tort Claims Act, public entities and public employees already enjoy immunity SB 168 Page 12 from civil liability for injury caused fighting fires. This bill would provide specific immunity from civil liability to public and private sector emergency responders for any damage to a UAS, if the damage was caused while the responder was providing, and the UAS was interfering with, the emergency services. For example, if an emergency responder collided with a drone, or if a drone had to be purposely damaged or destroyed in order to begin emergency operations, then the immunity would apply, but only for damage to drone itself and not any secondary effects. Note that, for purposes of the civil immunity, the bill applies to forms of emergency response beyond firefighting, including ambulance services and search and rescue services. SB 168 also defines "emergency responder" to include not just public entities and public employees, but also unpaid volunteers and private entities who are acting within the scope of authority implicitly or expressly provided by a public entity or public employee to respond to an emergency situation. 8)Consumer education and other UAS mitigation tools are insufficient . Theoretically, law enforcement agencies can use a number of tools, such as consumer education, communications jamming, and geofencing technology to help mitigate UAS interference in wildfires and other emergencies. But those efforts may not be sufficient to fully address the problem. Cal Fire and other agencies have already begun an extensive public education campaign under the motto, "If You Fly, We Can't!" to inform the public of the dangers of flying UAS near emergencies and to discourage hobbyists from flying UAS near wildfires. Cal Fire has also established a hotline (1-844-DRONE11) for reporting information about irresponsible UAS operators flying close to disasters and emergencies. Private sector smart phone applications, like Hover, can also SB 168 Page 13 help users avoid restricted areas. In certain cases, law enforcement agencies can jam communication frequencies to stop drones from approaching danger zones. However, untargeted jamming technologies can inadvertently interfere with first-responder and civilian communications, and could disable drones in use by legitimate first responders. Some experts have proposed requiring UAS to have so-called "geofencing" chips that could one day automatically prevent a UAS from flying near an area designated by authorities as a danger zone. However, most recreational drones on the market today do not contain geofencing technology, and those that do can be disabled by drone operators. 9)Arguments in support . According to the California Police Chiefs Association and the League of California Cities, "Privately operated drones pose a serious threat to our state's first responders battling wildfires, transporting critically ill individuals and searching for missing persons. Earlier this month in Fresno we witnessed a civilian's drone nearly collide with an air ambulance. At the Cajon Pass, we witnessed a tragedy as dozens of cars combusted. The cause? A civilian drone forced firefighting operations to land, allowing for the fire to grow and jump the freeway. The U.S. Forest Services has tallied thirteen wildfires in which suspected drones interfered with firefighting aircraft this year. In fact, this increasingly frequent hazard is causing local jurisdiction to offer rewards ranging from $25 to 75,000 for information on interrupting drone-operators. The distractions, delays, and heightened threat to public safety caused by the irresponsible use of civilian drones pose an unacceptable and growing risk for both our first responders and members of the public. [This bill] will allow first responders to continue their operations and keep Californians safe." SB 168 Page 14 The California State Firefighters' Association states, "We are amidst a fire intensive season during this drought. At the same time, drones have become more accessible to the public. Consequently, many of these drones have gotten in the way of many firefighting efforts; [this bill] will ensure that these emergency responders can serve the needs of the public without interference and worry of frivolous lawsuits from these drone operators.' 10)Recent amendments remove concerns . The California Ambulance Association (CAA) and the Orange County Professional Firefighters Association (OCPFA) raised concerns that the bill did not cover other types of emergency response services that may be provided in a fire. For example, the previous version of the bill did not specifically reference private ambulance companies or emergency medical service employees or providers. The author recently accepted amendments addressing the concerns raised by CAA and OCPFA that not all types of emergency responders were included. Specifically, the recent amendments: a) Clarify that the immunity provisions of the bill apply to emergency medical services more broadly, in addition to ambulance, firefighting, and search and rescue operations; and b) Add a new section to the Civil Code to create immunity from civil liability for damage to a drone caused by a private entity emergency responder acting within the scope of authority provided by a public entity; and SB 168 Page 15 c) Add co-authors. 11)Urgency clause . SB 168 is an urgency measure intended to address interference with current firefighting efforts during a period of unusually severe fire danger caused by California's historic drought. As such, this bill will require a 2/3 vote on the Assembly Floor. 12)Related legislation . AB 14 (Waldron) would have created 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 is currently pending on the Senate Floor. 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, passed the Senate 40-0, and is currently awaiting action by the Governor. SB 142 (Jackson) extends liability for wrongful occupation of real property and damages to a person who without permission operates a UAS below 350 feet over the real property. SB 142 passed the Senate on a 24-9 vote, passed the Assembly on a SB 168 Page 16 56-13 vote but was vetoed the Governor. SB 167 (Gaines) increases fines for UAS interference with firefighting activities. SB 167 is currently pending in the Senate Public Safety Committee. 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 39-0 vote, passed the Assembly 80-0 and is currently awaiting action by the Governor. SB 271 (Gaines) prohibits the use of a 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 40-0 vote, passed the Assembly 80-0, and is currently awaiting action by the Governor. SB 262 (Galgiani) would have authorized 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 SB 168 Page 17 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. SJR 18 (Wolk) urges the President of the United States and the United States Secretary of Transportation to allow for the operation of small unmanned aircraft systems (UAS) by farmers and rangeland managers pursuant to emergency rules adopted by the administration using its emergency powers. SJR 18 passed the Senate 39-0 and is currently pending in the Assembly Privacy and Consumer Protection Committee. REGISTERED SUPPORT / OPPOSITION: Support California Police Chiefs Association (co-sponsor) League of California Cities (co-sponsor) The Honorable Dan Kalb, Oakland City Councilmember Air and Surface Transport Nurses Association California Fire Chiefs Association California Professional Firefighters California State Association of Counties California State Firefighters' Association California State Lodge, Fraternal Order of Police City of Dublin City of Redding County of Riverside County of San Bernardino County of San Diego Emergency Nurses Association Long Beach Police Officers Association SB 168 Page 18 Los Angeles County Professional Peace Officers Association Orange County Professional Firefighters, Local 3631 Sacramento County Deputy Sheriffs' Association Opposition None on file. Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916) 319-2200