BILL ANALYSIS                                                                                                                                                                                                    



                                                                     SB 170


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          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