BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 168


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          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;









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                  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








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                  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  








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               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;  








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              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  








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            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  








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            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  








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            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."













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           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.








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          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. 









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            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  








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            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  








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            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."










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            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













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               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  








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            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  








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            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








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          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