BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 170        Hearing Date:    April 14, 2015    
          
           ----------------------------------------------------------------- 
          |Author:    |Gaines                                               |
          |-----------+-----------------------------------------------------|
          |Version:   |April 7, 2015                                        |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|MK                                                   |
          |           |                                                     |
           ----------------------------------------------------------------- 


            Subject:  Unmanned Aircraft Systems: Correctional Facilities



          HISTORY

          Source:   Author

          Prior Legislation:SB 15 (Padilla) - failed Assembly Public  
          Safety, 2014
                         AB 1327 (Gorell) - Vetoed, 2014
                         
          Support:  California State Sheriffs' Association

          Opposition:California Attorneys for Criminal Justice
                                                
          PURPOSE

          The purpose of this bill is to make the intentional operation of  
          an unmanned aircraft system in airspace over laying a prison or  
          jail a misdemeanor, and to create an enhancement for using an  
          unmanned aircraft system to deliver contraband into a prison or  
          jail.

          Existing federal law, the Aviation Administration Modernization  
          and Reform Act of 2012, requires the Secretary of Transportation  
          to develop a comprehensive plan to safely accelerate the  
          integration of civil unmanned aircraft systems into the national  
          airspace system.  The plan is required to provide for safe  







          SB 170  (Gaines )                                          Page  
          2 of ?
          
          
          integration of civil unmanned aircraft systems into national  
          airspace as soon as practicable, not later than September 30,  
          2015.  (112 P.L. 95, 332.)

          Existing law prohibits wiretapping or eavesdropping on  
          confidential communications. (Penal Code  630.)
           
           Existing law makes it a crime for a person, intentionally, and  
          without requisite consent, to eavesdrop on a confidential  
          communication by means of any electronic amplifying or recording  
          device.  (Penal Code  632.)

          Existing law makes a person liable for "physical invasion of  
          privacy" for knowingly entering onto the land of another person  
          or otherwise committing a trespass in order to physically invade  
          the privacy of another person with the intent to capture any  
          type of visual image, sound recording, or other physical  
          impression of that person engaging in a personal or familial  
          activity, and the physical invasion occurs in a manner that is  
          offensive to a reasonable person.  (Civil Code  1708.8 (a).) 
           
          Existing law makes a person liable for "constructive invasion of  
          privacy" for attempting to capture, in a manner highly offensive  
          to a reasonable person, any type of visual image, sound  
          recording, or other physical impression of another person  
          engaging in a personal or familial activity under circumstances  
          in which the plaintiff had a reasonable expectation of privacy,  
          through the use of a visual or auditory enhancing device,  
          regardless of whether there was a physical trespass, if the  
          image or recording could not have been achieved without a  
          trespass unless the visual or auditory enhancing device was  
          used.  (Civil Code  1708.8 (b).) 
           
          Existing law provides that a person who commits an invasion of  
          privacy for a commercial purpose shall, in addition to any other  
          damages or remedies provided, be subject to disgorgement to the  
          plaintiff of any proceeds or other consideration obtained as a  
          result of the violation of this section.  Existing law defines  
          "commercial purpose" to mean any act done with the expectation  
          of sale, financial gain, or other consideration.  (Civil Code   
          1708.8 (d), (k).) 

          Existing law makes it a felony for smuggling a controlled  
          substance into prison or jail.  (Penal Code 4573.)








          SB 170  (Gaines )                                          Page  
          3 of ?
          
          

          Existing law makes it a felony to bring drugs or alcoholic  
          beverages into a penal institution. (Penal Code  4573.5)

          Existing law makes it a felony to possess controlled substances  
          where prisoners are kept.  (Penal Code 4573.6)
           
          Existing law makes it a felony to possess drugs or paraphernalia  
          in prison or jail.  (Penal Code  4573.8)

          Existing law makes it a felony to sell or give drugs to a person  
          in custody in State Prison or Institution.  (Penal Code 4573.9)

          Existing law makes it a felony for smuggling firearms, deadly  
          weapons or tear gas into prison or jail.  (Penal Code 4574.)

          Existing law makes it a misdemeanor to possess a wireless  
          communication device including a cell phone, pager, etcetera in  
          a local correctional facility is a misdemeanor.  (Penal Code   
          4575.(a).)

          Existing law makes it an infraction to possess any tobacco  
          products in a local correctional facility. (Penal Code   
          4575.(b).)

          Existing law makes it a misdemeanor to possess with the intent  
          to deliver a wireless communication device in a prison. (Penal  
          Code 4576)

          This bill would add an enhancement of one year on any felony, or  
          double the fine for any infraction or misdemeanor, if the  
          contraband is brought into a prison or jail by use of an  
          unmanned aircraft device.

          This bill also makes it a misdemeanor to intentionally operate  
          an unmanned aircraft system below the navigable airspace  
          overlying a state prison or jail without prior permission.



                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  








          SB 170  (Gaines )                                          Page  
          4 of ?
          
          
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  








          SB 170  (Gaines )                                          Page  
          5 of ?
          
          
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.





          











          COMMENTS

          1. Need for This Bill
          
          According to the author:

               Keeping contraband out of prison is essential to  
               running a safe and orderly facility.  Studies show  
               that the presence of contraband increases the risk of  
               violence or disruptive behavior.  However, even with  
               the close monitoring of individuals and mail coming  
               into prisons, creating contraband-free facilities has  
               always been a challenge.

               With public access to drones increasing, this issue is  
               escalating.  As drones become smaller and easier to  
               operate, virtually anyone will be able to use the  
               devise to drop contraband into a prison.  Already  
               there have been instances in South Carolina, George,  
               and Canada of attempts to use drones to drop  








          SB 170  (Gaines )                                          Page  
          6 of ?
          
          
               contraband into prisons.  It is imperative that  
               California's penal code addresses this reality and  
               creates a penalty for people who commit this action.

               Additionally, drones can be used to gather sensitive  
               information from inside the prison walls.  This  
               information can be used for a variety of dangerous  
               exploits, including inmate escapes and prison riots.   
               Placing restrictions on the use of drones over prisons  
               and the capturing of images helps prevent these  
               situations.

          2.  Unmanned Aircraft Systems
          
          This bill would use the term "unmanned aircraft systems," as  
          defined, to reference what are commonly known as drones.  That  
          term, also used by the Federal Aviation Administration (FAA),  
          would be defined to include the unmanned aircraft itself (the  
          drone) and the associated elements (which include the components  
          that control the aircraft).  Regarding the types of aircraft  
          that may be considered unmanned aircraft systems, the FAA's fact  
          sheet notes:

               Unmanned Aircraft Systems (UAS) come in a variety of  
               shapes and sizes and serve diverse purposes.  They may  
               have a wingspan as large as a Boeing 737 or smaller than  
               a radio-controlled model airplane.  Regardless of size,  
               the responsibility to fly safely applies equally to  
               manned and unmanned aircraft operations.

               Because they are inherently different from manned  
               aircraft, introducing UAS into the nation's airspace is  
               challenging for both the FAA and aviation community.  UAS  
               must be integrated into a National Airspace System (NAS)  
               that is evolving from ground-based navigation aids to a  
               GPS-based system in NextGen.  Safe integration of UAS  
               involves gaining a better understanding of operational  
               issues, such as training requirements, operational  
               specifications and technology considerations. 

          Although not always thought of when the word "drone" is used,  
          hobby-size airplanes and helicopters that are equipped with  
          digital cameras are becoming more and more affordable for the  
          average consumer.  Those hobby aircraft may be used for pure  








          SB 170  (Gaines )                                          Page  
          7 of ?
          
          
          novelty, surveying one's yard, or even checking to see the  
          condition of a roof.  With respect to the treatment of model  
          aircraft as an unmanned aircraft system, the FAA has issued the  
          following clarification:

               The current FAA policy for UAS operations is that no  
               person may operate a UAS in the National Airspace  
               System without specific authority.  For UAS operating  
               as public aircraft the authority is the [Certificate  
               of Waiver or Authorization], for UAS operating as  
               civil aircraft the authority is special airworthiness  
               certificates, and for model aircraft the authority is  
               AC 91-57 [(the model aircraft operating standards)]. 

               The FAA recognizes that people and companies other  
               than modelers might be flying UAS with the mistaken  
               understanding that they are legally operating under  
               the authority of AC 91-57.  AC 91-57 only applies to  
               modelers, and thus specifically excludes its use by  
               persons or companies for business purposes.
          
          3.  Misdemeanor for Flying Over a Prison or Jail

          This bill makes it a misdemeanor to fly an unmanned aircraft  
          system (drone) over a prison or jail without permission.  The  
          penalty would be up to six month in jail or by a fine not  
          exceeding $1,000.

          4.  Enhancement for Delivering Contraband by Drone

          This bill would create an enhancement for delivering contraband  
          to a prison or jail by drone.  If the underlying contraband  
          provision is a felony then this bill would add one year to the  
          underlying sentence.  If the underlying contraband provision is  
          an infraction or misdemeanor the fines for those offenses would  
          be doubled.

          Are enhancements an effective means of deterrent?  Is an  
          enhancement appropriate in this circumstance?



                                      -- END -









          SB 170  (Gaines )                                          Page  
          8 of ?