BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  July 15, 2015


                           ASSEMBLY COMMITTEE ON EDUCATION


                              Patrick O'Donnell, Chair


          SB  
          271 (Gaines) - As Amended June 30, 2015


          [Note:  This bill was double referred to the Assembly Committee  
          on Privacy and Consumer and was heard by that committee as it  
          relates to issues under its jurisdiction.]


          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 or to use a UAS to capture images of  
          a public school campus during school hours without the written  
          permission of the school principal or other school official, as  
          specified.  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)     A publisher, editor, reporter, or other person  
                 connected with or employed by a newspaper, magazine, or  
                 other periodical publication, or by a radio or television  
                 station, or by a press association or wire service, or  
                 any person who has been so connected or employed (news  
                 media); 



               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 or his  
            or her designee 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 one hour before through one  








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            hour after any school session, extracurricular activities, or  
            events sponsored by the school.



          7)Defines "unmanned aircraft" to mean an aircraft that is  
            operated without the possibility of direct human intervention  
            from within or on the aircraft.
          8)Defines "unmanned aircraft system" to mean an unmanned  
            aircraft and associated elements,   including, but not limited  
            to, communication links and the components that control the  
            aircraft that are required for the pilot in command to operate  
            safely and efficiently in the national airspace system.





          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)











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          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  
            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))



          6)Establishes the federal Family Educational Rights and Privacy  
            Act (FERPA), which protects the privacy of student information  
            in educational records.
          


          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.








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          COMMENTS:  


          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.  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  
          safeguards 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."





          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 are used in the agricultural industry to observe  
          and measure crops while conserving resources and avoiding the  








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          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.


          FAA regulation of UAS.  Current FAA rules prohibit UAS use in  
          FAA airspace, but allow commercial users to apply for an  
          exemption from the FAA rules along with an FAA Certificate 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.  


          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  








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          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 above public  
          school grounds when school is in session or during any  
          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.  


          FERPA.  FERPA protects student information in educational  
          records by placing restrictions on the type of information that  
          can be disclosed to outside individuals, agencies, and  
          organizations without parental consent.  Protected information  
          can include photographs, videotapes, and other electronic  
          information, but only if they are contained in an educational  
          record that is maintained by an educational agency.  For  
          example, a video taken by a surveillance camera operated by law  
          enforcement is not protected by FERPA.  But if that video is  
          later used in a disciplinary action and becomes a part of a  
          student's record, then it would become subject to the  
          requirements of FERPA.  Similarly, photos and videos of students  
          that are taken by a camera mounted on a UAS are not protected by  
          FERPA, unless they become part of the educational record  
          maintained by the school.   









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          Exemptions 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.  


          As written, however, the exemption is overly broad.  It exempts  
          any person who is employed or "connected with" a news or media  
          organization even if that person is not engaged in information  
          or news gathering or reporting activity.  In addition, it  
          exempts any person who was so employed or connected, but is no  
          longer.  Staff recommends the bill be amended to narrow the  
          exemption to (1) individuals in the media who are "engaged in  
          gathering, receiving or processing information for communication  
          with the public" and (2) persons no longer employed by the  
          media, but who were employed at the time they operated the UAS. 


          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."


          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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          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 Judiciary Committee on July 14, 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 will be heard in the Senate Judiciary Committee on July  
          14, 2015. 


          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 is pending in the Assembly  
          Judiciary Committee on July 7, 2015. 


          SB 170 (Gaines) creates a felony crime for the use of a UAS to  
          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  
          is pending in the Assembly Public Safety Committee on July 7,  
          2015.  


          SB 262 (Galgiani) authorizes a law enforcement agency to use a  








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          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.   


          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  
          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  








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          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.  
            
          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Police Chiefs Association, Inc.


          Klass Kids Foundation




          Opposition


          California Public Defenders Association




          Analysis Prepared by:Rick Pratt / ED. / (916)  








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          319-2087