BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 271 Hearing Date: April 14, 2015
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|Author: |Gaines |
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|Version: |April 6, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Unmanned Aircraft Systems
HISTORY
Source: Author
Prior Legislation:SB 15 (Padilla) failed Assembly Public Safety
2014
AB 1327 (Gorell) Vetoed 2014
Support: Unknown
Opposition:The California Public Defenders Association
PURPOSE
The purpose of this bill is to prohibit the unauthorized use of
a drone on a school grounds during school hours or to capture
images of the school grounds during school hours.
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
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airspace system. The plan is required to provide for safe
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).)
This bill provides that unless authorized by federal law, it
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shall be an infraction to operate an unmanned aircraft system on
or above the grounds of a public school providing instruction in
kindergarten or grades 1 to 12, inclusive during school hours
and without the written permission of the school principal or
higher authority, or his or her designee or equivalent
authority..
This bill provides that unless authorized by federal law, it
shall be an infraction to use an unmanned aircraft system to
capture images of public school grounds providing instruction in
kindergarten or grades 1 to 12 inclusive, during school hours
and without the written permission of the school principal or
higher authority, or his or her designee, or equivalent school
authority.
This bill provides that a violation shall be punished by a fine
of not more than $50, plus penalty assessments, for a first
offense, and a fine of not more than $200, plus penalty
assessments for a second offense.
This bill provides that it shall not apply to the operation of
an unmanned aircraft system by law enforcement during a public
safety emergency.
This bill defines unmanned aircraft system as an unmanned
aircraft and associated elements, including communication links
and the components that control the unmanned aircraft that are
required for a pilot in command to operate safely and
efficiently in the national airspace system.
This bill defines school hours as during any school session,
extracurricular activity, or even sponsored by or participated
in by the school, and the one-hour periods immediately preceding
and following any session, activity or event.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
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
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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
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
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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:
Currently, California has few laws governing drone use
and data capture. As drone usage becomes more common,
the potential for misuse and abuse of them will expand
as well.
This bill is intended to stay ahead of the
technological cure by providing safeguard for our
children while they are at school. By prohibiting
drone flights over public schools grades K-12 and
prohibiting data capture (video footage or
photographs, e.g.) of activity on school grounds, this
bill would provide an important layer of privacy to
our students at a place that should be a sanctuary.
In addition, it will help protect students from
potential harassment, stalking, kidnap or other
potential harm that could be facilitated through
drones capturing their location, activities and
movement patterns on campus.
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
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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
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. No Drones on School Grounds
This bill would prohibit the use of drones on school grounds and
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capturing images of a school during school hours or school
activities without written permission of the school. The
penalty is an infraction punishable by a fine of $50 plus
approximately 300% penalty assessments so approximately a $200
fine. For a second or subsequent offense the penalty is $200
plus approximately 300% penalty assessments so approximately an
$800 fine.
The prohibition applies when school is in session or during any
extracurricular activity or event sponsored by or participated
in by the school.
4. Exception for Law Enforcement During an Emergency
This bill contains and explicit exemption for the use of a drone
by law enforcement during a law enforcement emergency.
5. Exception for the News Media
The author intends to offer an amendment to make exception to
the prohibition for the news media. The intent of the amendment
is to allow the media the same access they currently have on
school grounds. They can use a drone but have to leave if
asked.
6. Notice
Should the bill require notice on the school grounds that drones
are prohibited or require a person be asked to leave before a
ticket is issued or have a first violation be a warning? Will a
neighbor of the school who goes to one field of the school to
fly a drone while a soccer game is going on on another field
necessarily know he or she is violating the law?
7. Opposition
The California Public Defenders Association is concerned that
the definition of "unmanned systems" is too broad. Specifically
they state:
This broad definition seems to lead to the
criminalization of more than the author intends. This
would seem to criminalize the operation of a
remote-controlled airplane of the type used for
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children for recreation, rather than only the
operation of more sophisticated drone aircraft as such
are commonly understood in the popular mind. This
legislation should include language defining "unmanned
aircraft system" in a manner that does not potentially
subject innocent recreation to criminal penalty.
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