BILL ANALYSIS Ó
SB 170
Page 1
Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Mike Gatto, Chair
SB
170 (Gaines) - As Amended June 29, 2015
SENATE VOTE: 40-0
SUBJECT: Unmanned aircraft systems: correctional facilities.
SUMMARY: Prohibits a person from knowingly and intentionally
operating an unmanned aircraft system (UAS) over a state prison
or county jail. Specifically, this bill:
1)Makes it a misdemeanor for a person to knowingly and
intentionally operate a UAS on or above the grounds of a state
prison or jail, except as provided.
1)Exempts from the prohibition a prison employee operating
within the scope of his or her employment, or a person with
the prior permission of the Department of Corrections and
Rehabilitation.
2)Exempts from the prohibition a jail employee operating within
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the scope of his or her employment, or a person with the prior
permission of the county sheriff.
3)Defines the terms "unmanned aircraft" and "unmanned aircraft
system" consistent with Federal Aviation Administration (FAA)
regulation.
4)Provides 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.
EXISTING LAW:
1)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)
2)Makes it a misdemeanor to communicate with or bring or take a
letter, writing, literature or reading matter to or from a
person in custody in a prison or jail. (Penal Code (PC)
Section 4570.
3)Makes it a misdemeanor to possess or possess with the intent
to deliver a wireless communication device (i.e., cell phone,
pager, etc.) in a jail. (PC 4574(a), 4576)
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4)Makes it a felony to smuggle, sell or give controlled
substances or bring drugs or alcohol to a person in custody in
a prison or jail. (PC 4573, 4573.5, 4573.9)
5)Makes it a felony to possess controlled substances, drugs or
drug paraphernalia in a prison or jail. (PC 4573.6, 4573.8)
6)Makes it a felony to smuggle firearms, deadly weapons or tear
gas into a prison or jail. (PC 4574)
7)Makes it an infraction to possess tobacco products in a jail.
(PC 4575(b))
FISCAL EFFECT: According to the Senate Appropriations
Committee: Non-reimbursable local costs for enforcement and
incarceration, offset to a degree by fine revenue for the new
misdemeanor.
COMMENTS:
1)Purpose of this bill . This bill is intended to improve prison
and jail security by making it a misdemeanor to operate a UAS
in the airspace over the grounds of a prison or jail. This
bill is author-sponsored.
2)Author's statement . According to the author, "keeping
contraband out of prison and jails is essential to running
safe and orderly facilities. Studies show that the presence
of contraband increases the risk of violence or disruptive
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behavior. However, even with the close monitoring of
individuals and mail coming into prisons and jails, 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 [UAS] to drop
contraband into a prison or jail. Already there have been
instances in South Carolina, Georgia, and Canada of attempts
to use drones to drop contraband into prisons. It is
imperative that California's penal code address this reality
by limiting the use of drones over prisons and jails.
"Additionally, drones can be used to gather sensitive
information from inside prison and jail 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 jails helps
prevent these situations."
3)The many uses of UAS . The FAA defines a UAS as an unmanned
aircraft system and all of the associated support equipment,
control stations, data links, telemetry, and communications
and navigation equipment necessary to operate the unmanned
aircraft. A UAS is flown either by a pilot via a ground
control system or autonomously through use of an on-board
computer. UAS are widely available to the public. Retail UAS
devices outfitted with cameras now range from roughly $300 to
$1,500.
Commercial applications for UAS are growing exponentially.
UAS gives the news media economical and
environmentally-friendly access to aerial views of traffic,
storms, and other events when compared to the current use of
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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, plans to seek
FAA approval for "PrimeAir" - a new delivery system that uses
small UAS to deliver packages instead of using 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.
4)FAA 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 for manned flights
(airplanes, helicopters, etc.).
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 released 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
create a less strict regulatory framework for "micro" UAS
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(under 4.4 pounds).
Once the FAA has finished promulgating regulations governing
the use of UAS, a future court may find that those regulations
preempt certain state laws, but this remains uncertain.
5)Recent drone incidents involving prisons . The concern about
drone overflight of prisons to prevent smuggling is not just a
theoretical exercise, as there are multiple examples of people
attempting to use UAS to introduce contraband to prisons.
According to a recent New York Times article, "some would-be
smugglers are experimenting with [UAS] as an alternative to
established methods like paying off officers, hiding
contraband in incoming laundry and throwing packages disguised
as rocks over fences into recreational yards." ("Airmail Via
Drones Is Vexing For Prisons," New York Times, April 22, 2015)
In Georgia, four people were arrested for dropping several
pounds of tobacco into a prison yard. ("Drone Crew Caught
Attempting to Deliver Smokes to Prison Inmates," Ars Technica,
November 27, 2013)
In South Carolina, authorities made an arrest following a
failed attempt to deliver contraband into a prison.
("Delivery Drone Carrying Marijuana, Cellphones and Tobacco
Crashed Outside A S.C. Prison," Washington Post, July 31,
2014) There have also been reports of similar incidents at
prisons in Ireland, Britain, Australia and Canada.
6)Privacy issues? The California Attorneys for Criminal Justice
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(CACJ) previously opposed an earlier version of this bill,
which dealt with capturing images of prisons using a UAS.
However, those provisions have since been removed from the
bill, and CACJ is now neutral on the bill.
7)Prior actions by this Committee. Earlier this year, this
Committee passed AB 56 (Quirk) requiring a public hearing
process and local policy development before local law
enforcement deployment of UAS to fight crime. This Committee
also passed AB 856 (Calderon), which permits a civil action
for physical invasion of privacy for the use of UAS over
private property to capture images of people.
In addition to this bill, this Committee will hear two other
UAS bills on July 7, 2015: SB 142 (Jackson), which creates a
trespass action for the use of UAS over private property
without permission, and SB 271 (Gaines), limiting the use of
UAS over schools. While those bills create a 350-foot
ceiling, above which UAS use would be permitted, this bill
creates no such ceiling.
As noted above, if this bill becomes law, a court may find
that FAA regulations preempt this bill, at least as to manned
and unmanned flights above 500 feet. If that occurs, the
Legislature could amend the law to limit this bill to a
500-foot ceiling. Until then, however, Committee staff
recommends and the author's office agrees that placing a limit
of 350 feet, or even 500 feet, could undermine the bill's
purpose by leaving a zone of airspace in which drones could
legally fly, and potentially drop contraband onto prison
grounds.
8)Arguments in support . According to the California
Correctional Peace Officers Association (CCPOA), this bill
"updates current prohibitions on bringing, possessing,
distributing, or selling certain devices (such as alcoholic
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beverages, controlled substances and deadly weapons) in state
prisons or county jails?.to make it clear that the use of
drones to accomplish any of the above activities is also
unlawful. The measure updates existing laws to reflect this
new technology rather than wait for the issue to arise and
become a source of litigation."
The California Police Chiefs Association states, "as unmanned
aircraft become more publically accessible, virtually anyone
will be able to use the device to drop contraband into a
prison or county jail. Additionally, unmanned aircraft
systems can be used to gather sensitive information from
inside of prisons and jails. This information can be used for
a variety of dangerous exploits including inmate escapes and
prison riots. Placing restrictions on the use of unmanned
aircraft over prisons and jails helps prevent these
situations."
9)Related legislation . AB 14 (Waldron) creates 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 will be heard in the Senate Public Safety
Committee on July 7, 2015.
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
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78-0 vote and is currently pending in the Senate Judiciary
Committee.
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 and will be heard in the
Assembly Privacy and Consumer Protection Committee on July 7,
2015.
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 37-0 vote and will be heard in the Assembly
Privacy and Consumer Protection Committee on July 7, 2015.
SB 262 (Galgiani) authorizes 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 that can
be attached to a UAS, and if the local governing board
approves the use. SB 262 is sponsored by the California
Police Chief's Association. SB 262 was held in the Senate
Judiciary Committee and is a two-year bill.
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10)Prior legislation . AB 1256 (Bloom), Chapter 852, Statutes of
2014, created a cause of action for the capture of a visual
image or sound recording of another person with the use of an
enhanced visual or audio device liable for "constructive"
invasion of privacy, and made it illegal, and subject to civil
liability, to attempt to obstruct, intimidate, or otherwise
interfere with a person who is attempting to enter or exit a
school, medical facility, or lodging, as defined.
AB 2306 (Chau), Chapter 858, Statutes of 2014, expanded a
person's potential liability for constructive invasion of
privacy, by removing the limitation that the person use a
visual or auditory enhancing device, and instead made the
person liable when using any device to engage in the specified
unlawful activity.
SB 606 (De Leon), Chapter 348, Statutes of 2013, increased the
penalties for the intentional harassment of a child or ward of
another person because of that person's employment and it
specified that conduct occurring during the attempt to capture
a child's image or voice may constitute harassment if
specified conditions occur.
SB 15 (Padilla) of 2013 would have imposed a search warrant
requirement on law enforcement agency use of a UAS in certain
circumstances, would have applied existing civil and criminal
law to prohibited activities with devices or instrumentalities
affixed to, or contained within a UAS, and would have
prohibited equipping a UAS with a weapon, and would have
prohibited using a UAS to invade a person's privacy. SB 15
failed passage in the Assembly Public Safety Committee.
AB 2479 (Bass), Chapter 685, Statutes of 2010, provided that a
person who commits "false imprisonment" with the intent to
capture any type of visual image, sound recording, or other
physical impression of a plaintiff is subject to liability
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under the civil invasion of privacy statute and, as such,
liable for damages and remedies available pursuant to that
statute. This bill also amended the Vehicle Code to create
heightened penalties for persons who engaged in unlawful forms
of reckless driving while attempting to capture a visual image
of another person.
AB 524 (Bass), Chapter 499, Statutes of 2009, amended the
"invasion of privacy" statute so that a person who sells,
transmits, publishes, or broadcasts an image, recording, or
physical impression of someone engaged in a personal or
familial activity violates the state's "invasion of privacy"
statute. Previously, the statute had only applied to the
person who wrongfully obtained the image, recording, or
physical impression, but not necessarily the entity that sold
or published the image, recording, or impression.
11)Double-referral . This bill is double-referred to the
Assembly Public Safety Committee, where it will be heard if
passed by this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Correctional Peace Officers Association
California Police Chiefs Association
California State Lodge, Fraternal Order of Police
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California State Sheriffs' Association
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Sacramento County Deputy Sheriffs' Association
Opposition
None on file.
Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)
319-2200