BILL ANALYSIS Ó
SB 271
Page 1
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.
SB 271
Page 2
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
SB 271
Page 3
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)
SB 271
Page 4
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.
SB 271
Page 5
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
SB 271
Page 6
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
SB 271
Page 7
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.
SB 271
Page 8
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."
SB 271
Page 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 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
SB 271
Page 10
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
SB 271
Page 11
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)
SB 271
Page 12
319-2087