BILL ANALYSIS Ó
SB 271
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Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Mike Gatto, Chair
SB
271 (Gaines) - As Amended June 30, 2015
SENATE VOTE: 37-0
SUBJECT: Unmanned aircraft systems.
SUMMARY: Makes it an infraction to knowingly and intentionally
operate an unmanned aircraft system (UAS) at or less than 350
feet above a public school campus or to use a UAS to capture
images of a public school campus during school hours without the
written permission of the school principal. Specifically, this
bill:
1)Prohibits the knowing and intentional operation of a UAS at,
or less than 350 feet above the grounds of a public school
providing instruction in kindergarten or grades 1 through 12
(K-12 school).
2)Prohibits the unauthorized use of a UAS to capture images of
K-12 school grounds during school hours.
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3)Provides exceptions to these prohibitions for:
a) The news media, including newspaper,
television, radio, and news wire services;
b) Law enforcement agencies; and
c) UAS users who have written permission from the
school principal, the principal's designee, or a
higher authority.
4)Requires the news media to stop using a UAS over a K-12
school's grounds upon the request of a school principal on the
basis that the UAS would disrupt class or other school
activities.
5)Authorizes the imposition of a warning for the first
violation, and a fine of $200 for each subsequent violation.
6)Defines "school hours" to include any school session,
extracurricular activities, events sponsored by the school,
and one hour before and after any session, activity, or event.
7)Defines "unmanned aircraft" and "unmanned aircraft system"
consistent with Federal Aviation Administration (FAA)
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regulation.
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)Prohibits, with exceptions, electronic eavesdropping or
recording of private communications by telephone, radio
telephone, cellular radio telephone, cable or any other device
or in any other manner. Violation can result in penalties of
up to $10,000 and imprisonment in county jail or state prison
for up to one year. (Penal Code (PC) Sections 630-638)
3)Prohibits looking through a hole or opening or otherwise view,
by means of any instrumentality, the interior of bedrooms,
bathrooms, and various other areas in which an occupant has a
reasonable expectation of privacy, with the intent to invade
the privacy of one or more persons inside. (PC 647(j)(1))
4)Defines "physical invasion of privacy" as the knowing entry on
the land of another without permission, or otherwise committed
a trespass, in order to capture an image, sound recording or
other impression in a private, personal, or familial activity
and the invasion occurs in a manner that is offensive to a
reasonable person. (CC 1708.8)
5)Defines "constructive invasion of privacy" in terms of
attempting to capture, in a manner highly offensive to a
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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. (CC
1708.8 (b))
FISCAL EFFECT: The Senate Appropriations Committee found,
pursuant to Senate Rule 28.8, that any additional state costs
are not significant, and do not and will not require the
appropriation of additional state funds, and that the bill will
cause no significant reduction in revenues.
COMMENTS:
1)Purpose of this bill . This bill seeks to protect the privacy
of public school students and to protect students from
potential injury, harassment, stalking, kidnapping or other
harms that could stem from the use of UAS to capture students'
images or movements on public school campuses. This bill is
author-sponsored.
2)Author's statement . 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 curve by providing
safeguard for our children while they are at school. By
prohibiting drone flights over public schools grades K-12 and
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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."
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
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 . Current FAA rules prohibit UAS use in
FAA airspace unless, but allow commercial users to apply for
an exemption from the FAA rules along with an FAA Certificate
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of Authorization (COA) permitting commercial uses, such as
real estate marketing, wedding photography, television, film,
mapping, and land surveys. Federal, state and local
government agencies, law enforcement, and public colleges and
universities can also receive a COA from the FAA authorizing
specific uses of UAS for specific time periods.
On February 15, 2015, the FAA released a proposed framework of
regulations to allow the use of "small" UAS (under 55 pounds)
in national airspace, i.e., above 400 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
(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 - such as this one, if passed - but
this remains uncertain.
5)The privacy implications of UAS use . Despite the myriad
practical applications for UAS, the need for laws limiting
certain UAS uses is undisputed in light of the profound effect
UAS can have on personal privacy. UAS equipped with cameras,
microphones, Internet or wireless connections, and remote
controls have enormous potential to invade personal space if
used, for example, to hover at low heights over fenced
backyards, outside the windows of homes, over schools, and in
other public and private spaces. Among other things, UAS can
be used to capture close up images of faces, body parts, or
personal property, and could be used to listen to private
conversations.
This bill requires written permission from the school
principal or higher authority before a UAS can be flown public
school grounds when school is in session or during any
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extracurricular school activity or event. The prohibition
starts one hour before and ends one hour after a school
session, activity or event. The penalty for a first offense
is a simple warning, and the penalty for a second or
subsequent offense is an infraction punishable by a fine of
$200 plus approximately 300% in penalty assessments, so the
maximum fine for subsequent violations would be approximately
$800.
6)Exceptions for news media and law enforcement . News
organizations and law enforcement agencies are exempt from the
bill's prohibition, but a news organization may be asked to
stop using a UAS if the UAS would disrupt classes or other
school activities. According to the author's office, the news
media currently have access to school grounds unless the
school requests the news media to leave, and this bill adopts
the same standard for the news media's use of UAS.
7)Arguments in support . The KlaasKids Foundation states in
support that this bill is "a pre-emptive strike at those who
would use unmanned aircraft (drone) technology to photograph
children (K-12) during those hours that they are present at
school. By staying ahead of the technology curve, SB 271 will
provide assurances to children, teachers, and parents that
students privacy will not be compromised by covert photo
images secured via unmanned aircraft."
8)Arguments in opposition . The California Public Defenders
Association states in opposition that this bill "seem[s] to
criminalize the operation of a remote-controlled airplane of
the type used by children for recreation, rather than only the
operation of more sophisticated drone aircraft as such are
commonly understood in the popular mind."
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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 unmanned aircraft systems
(UAS) by public agencies, including law enforcement. AB 56
passed the Assembly on a 61-12 vote and is 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
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 170 (Gaines) creates a felony crime for the use of a UAS to
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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 40-0 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.
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 León), Chapter 348, Statutes of 2013, increased the
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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 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 was double-referred to the
Assembly Education Committee, where it will be heard if it
passes this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Police Chiefs Association
SB 271
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KlaasKids Foundation
Los Angeles Unified School District
Opposition
California Public Defenders Association
Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)
319-2200