BILL ANALYSIS Ó SB 807 Page 1 Date of Hearing: June 14, 2016 ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION Ed Chau, Chair SB 807 (Gaines) - As Amended May 27, 2016 SENATE VOTE: 37-0 SUBJECT: Unmanned aircraft systems SUMMARY: Grants civil immunity to public entities, public employees, and unpaid volunteers and private entities acting within the scope of delegated authority that damage an unmanned aircraft system (UAS) in the course of providing emergency services. Specifically, this bill: 1)Specifies that an emergency responder is not liable for damage to a UAS if the damage was caused while the emergency responder was providing, and the UAS was interfering with, the operation, support, or enabling of any of the following emergency services: a) Emergency medical services or ambulance transport services, including, but not limited to, air ambulance services; b) Firefighting or firefighting-related services, SB 807 Page 2 including, but not limited to, air services related to firefighting or firefighting-related services; and c)Search and rescue services, including, but not limited to, air search and rescue services. 2)Defines the term "emergency responder" for purposes of the civil immunity to mean either of the following, if acting within the scope of authority implicitly or expressly provided by a public entity or a public employee to provide emergency services: a)A paid or unpaid volunteer; or b)A private entity. 3)Specifies that a public entity or public employee is not liable for any damage to a UAS if the damage was caused while the public entity or public employee was providing, and the UAS was interfering with, the operation, support, or enabling of any of the following emergency services: a) Emergency medical services or ambulance transport services, including, but not limited to, air ambulance services; b) Firefighting or firefighting-related services, including, but not limited to, air services related to firefighting or firefighting-related services; and c)Search and rescue services, including, but not limited to, air SB 807 Page 3 search and rescue services. 4)Defines the term "unmanned aircraft" to mean an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft. 5)Defines the term "unmanned aircraft system" to mean an unmanned aircraft and all of the associated elements, including, but not limited to, communication links and the components that control the unmanned aircraft that are required for the pilot in command to operate safely and efficiently in the national airspace system. EXISTING LAW: 1)Generally exempts a public agency, or public employee acting in the scope of his employment, from liability for injury resulting from the condition of fire protection or firefighting equipment or facilities, and for any injury caused fighting fires. (Government Code Section (GC) 850.4) 2)Establishes, under the Government Tort Claims Act (Act), rules of civil liability that apply to public entities and public employees in California. (GC 810, et seq.) 3)Defines a "public entity" to include the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State, and makes all public entities, state and local, liable in tort to the extent declared by statute, subject to stated immunities and defenses. (GC 811.2 and 815, et seq.) SB 807 Page 4 4)Defines a "public employee" as an employee of a public entity and makes public employees liable to the same extent as private persons, subject to various immunities and defenses. (GC 811.4 and 820, et seq.) 5)Makes it a misdemeanor to go to the scene of an emergency or stop at the scene of an emergency to watch the scene or the activities of first responders or military personnel if doing so impedes their efforts, unless it is part of the duties of the person's employment to view the scene or activities. (Penal Code (PC) 402(a)) 6)Defines an "emergency" as a condition or situation involving injury to persons, damage to property, or peril to the safety of persons or property, which results from a fire, explosion, airplane crash, flooding, windstorm damage, rail accident, traffic accident, power plant accident, toxic chemical or biological spill, or any other natural or human-caused event. (PC 402(c)) 7)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) FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, any additional state costs are not significant, and do not and will not require the appropriation of additional state funds, and the bill will cause no significant reduction in revenues. SB 807 Page 5 COMMENTS: 1)Purpose of this bill . This bill is intended to prevent civilian UAS from interfering with firefighting and other emergency response activities by granting immunity from lawsuits to public entities, public employees, and unpaid volunteers and private entities acting within the scope of delegated authority who damage a drone in the line of duty (such as conducting firefighting, air ambulance, and search-and-rescue operations). This bill is sponsored by the League of California Cities and the California Police Chiefs Association. 2)Author's statement . According to the author: "Early in the course of last year's drought-heightened fire season, private unauthorized drones repeatedly halted firefighting efforts. The simple presence of these drones forced firefighters to ground mission-critical tanker aircraft, unnecessarily putting pilots, firefighters, civilians and property at risk. Disruption by drones at all fires-wildfire or otherwise-can have grave consequences. Additionally, these rogue drones have interfered with other lifesaving missions, such as air ambulance services. This bill will help ensure that emergency responders can do the job of protecting the public without worrying about frivolous lawsuits." "As drones become more accessible to the public, their presence in the sky is quickly increasing. It is essential that lifesaving services provided by emergency responders be free to continue despite someone's misplaced desire to capture images for YouTube and the like. It is the author's hope and intent that the advent of effective 'jamming' technology could keep drones away from emergency response areas and flight paths, and that warnings and public education efforts could ensure that the safest, least-damaging methods for avoiding or SB 807 Page 6 disabling unauthorized drones will be the primary methods used in these crises. This bill is a critical piece of legislation to keep rogue drones from interfering with the most effective response to time-sensitive crises." 3)Growth in commercial and recreational uses of UAS . UAS are widely available to the public for recreational use. Retail UAS devices outfitted with cameras now range from roughly $300 to $1,500. A July 2015 report by the Consumer Electronics Association estimates that hobbyists in the United States will buy 700,000 drones in 2015 alone. Commercial applications for UAS are being rapidly developed. UAS can give 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 can be 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. 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, and authorized the FAA establish interim requirements for the commercial operation of UAS. While the FAA is not expected to finish its final rulemaking for another year or two, the FAA's interim rules require entities that wish to conduct commercial, governmental, research or educational UAS operations to meet certain standards and apply for a Certificate of Authorization to operate. In 2015, the FAA issued rules requiring any UAS weighing SB 807 Page 7 between half a pound and 55 pounds to be registered with the FAA by February 19, 2016. The new FAA registration rules apply only to "model aircraft," i.e., recreational UAS. Upon registration, the FAA issues a unique identifier, which must be affixed to the UAS in a "readily accessible and visible manner." The unique identifier can then be used to look up the UAS owner in the event of a problem or accident. 5)Recent drone incidents near wildfires . During last year's fire season, several hobby UAS operators disrupted firefighting efforts during the initial stage of the North Fire near Cajon Pass. According to the California Department of Forestry and Fire Protection (Cal Fire), as the fire burned toward Interstate 15, which links Southern California to Las Vegas, fire officials were forced to ground firefighting aircraft after drones were sighted nearby - hampering efforts that could otherwise have held back the blaze that ultimately destroyed 20 vehicles and forced motorists to flee on foot from oncoming flames. The North Fire was just one of many incidents in 2015 in which hobby drones have caused disruptions in the suppression of California's major wildfires. On July 22, 2015, a drone grounded Cal Fire air support crews that were fighting a grassfire near Auburn in Placer County. Drone operators also interfered with emergency crews at the Mill 2 Fire in Yucaipa on July 12, 2015, and the Lake Fire near Barton Flats on June 17, 2015. Aerial firefighting aircraft, such as air tankers and helicopters, must fly at very low altitudes in order to be effective. Hobbyists who fly UAS near fires create the potential for a mid-air collision that could injure or kill aerial and ground firefighters as well as innocent bystanders on the ground below. Because of this risk, when firefighters SB 807 Page 8 detect a UAS flying over or near a wildfire, air operations must be suspended until all drones flying in a fire area are removed. This delay allows wildfires to grow, and in some cases like the North Fire, such a delay can pose an immediate threat to human lives and property. 6)Civil immunity for damage to drones that interfere with emergency services . This bill would provide immunity from civil liability for damage caused to UAS that interfere with emergency services more broadly, including ambulance services, services related to firefighting, and search and rescue operations - whether air, land or water-based - and whether public or private sector emergency responders are involved. Generally speaking, under the state Government Tort Claims Act, public entities and public employees already enjoy immunity from civil liability for injury caused fighting fires. This bill would expand immunity from civil liability to both public and private sector emergency responders for any damage to a UAS, if the damage was caused while the responder was providing, and the UAS was interfering with, emergency services. For example, if an emergency responder collided with a drone, or if a drone had to be purposely damaged or destroyed in order to conduct emergency operations, then the immunity in this bill would apply, but only for damage to the UAS itself and not any secondary effects. Note that, for purposes of the civil immunity, the bill applies to forms of emergency response beyond firefighting, including ambulance services and search and rescue services. This bill also defines "emergency responder" to include not just public entities and public employees, but also unpaid volunteers and private entities who are acting within the scope of authority implicitly or expressly provided by a SB 807 Page 9 public entity or public employee to respond to an emergency situation. 7)Consumer education and other UAS mitigation tools . Law enforcement agencies currently have a limited number of tools, such as consumer education, UAS communications jamming, and "geofencing" technology to help mitigate UAS interference in wildfires and other emergencies. Cal Fire and other agencies have already begun an extensive public education campaign under the motto, "If You Fly, We Can't!" to inform the public of the dangers of flying UAS near emergencies and to discourage hobbyists from flying UAS near wildfires. Cal Fire has also established a hotline (1-844-DRONE11) for reporting information about irresponsible UAS operators flying close to disasters and emergencies. Private sector smart phone applications, like Hover, can also help drone users avoid restricted areas. In certain cases, law enforcement agencies can jam communication frequencies to stop drones from approaching danger zones. However, untargeted jamming technologies can also inadvertently interfere with first-responder and civilian communications, and could disable drones in use by legitimate first responders. Earlier this year, this Committee approved AB 2724 (Gatto), which proposes requiring UAS to have so-called "geofencing" chips that could one day automatically prevent a UAS from flying into an area designated by authorities as a danger zone. However, many recreational drones in use today do not contain geofencing technology, and those that do can be disabled by drone operators. This bill would ensure all manner of emergency responders would have immunity in the instance that a UAS must be taken down in a way that damages the UAS but that is necessary for emergency response services to proceed. SB 807 Page 10 8)Governor's veto of prior legislation . In 2015, this Committee unanimously approved SB 168 (Gaines and Jackson), which contained immunity provisions similar to this bill. While SB 168 received unanimous approval from the Legislature, Governor Brown vetoed it along with several other bills that created new crimes. Governor Brown's veto message read as follows: "Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. "Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded. "Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective." The criminal penalty provisions that were contained in SB 168 are not included in this bill. 9)Arguments in support . According to the bill's sponsors, the California Police Chiefs Association and the League of California Cities, "Privately operated drones pose a serious threat to our state's first responders battling wildfires, transporting critically ill individuals and searching for missing persons?[I]n Fresno we witnessed a civilian's drone SB 807 Page 11 nearly collide with an air ambulance. At the Cajon Pass, we witnessed a tragedy as dozens of cars combusted. The cause? A civilian drone forced firefighting operations to land, allowing for the fire to grow and jump the freeway. The U.S. Forest Services has tallied thirteen wildfires in which suspected drones interfered with firefighting aircraft last year. In fact, this increasingly frequent hazard is causing local jurisdiction to offer rewards ranging from $25,000 to $75,000 for information on interrupting drone-operators. The distractions, delays, and heightened threat to public safety caused by the irresponsible use of civilian drones pose an unacceptable and growing risk for both our first responders and members of the public. SB 807 will allow first responders to continue their operations and keep Californians safe." According to the Civil Justice Association of California, this bill "protects emergency responders whether paid or unpaid, private or public employees, performing a list of emergency services including firefighting, search and rescue, ambulance and air ambulance. These essential roles are inherently dangerous. We should not add to the risks associated with these roles by exposing the people who fill them to lawsuits over damage to drones interfering with emergency response." 10)Technical amendment . The author has agreed to accept the following technical amendment to the Government Code to clarify that this bill does not limit any other immunity in existing law that may apply to public entity or public employee: On page 3, between lines 20 and 21, insert: SB 807 Page 12 "853.1. The immunity provided by this chapter is in addition to any other immunity provided to a public entity or public employee under law." 11)Related legislation . AB 1680 (Rodriguez) makes it a misdemeanor to operate a UAS in a way that interferes with first responders. AB 1680 is pending in the Senate Public Safety Committee. AB 2320 (Calderon and Low) prohibits, among other things, operating a UAS in a way that interferes with emergency response in an emergency. AB 2320 is pending in the Senate Public Safety Committee. AB 2724 (Gatto) requires UAS makers to include with the UAS a copy of FAA safety regulations, and if the UAS is required to be registered with the FAA, a notice of the registration requirement. That bill also requires UAS with GPS technology to be outfitted with a geo-fencing feature and requires UAS owners to have adequate liability insurance. AB 2724 is pending in the Senate Transportation and Housing Committee. 12)Double-referral . This bill was double-referred to the Assembly Judiciary Committee, where it will be heard if passed SB 807 Page 13 by this Committee. REGISTERED SUPPORT / OPPOSITION: Support California Police Chiefs Association (co-sponsor) League of California Cities (co-sponsor) Association for Los Angeles Deputy Sheriffs California Ambulance Association California Association of Code Enforcement Officers California College and University Police Chiefs Association California Fire Chiefs Association California Forestry Association California Justice Association of California SB 807 Page 14 California Narcotic Officers Association California Professional Firefighters California Special Districts Association California State Association of Counties California State Sheriffs' Association California Statewide Law Enforcement Association City of Ontario City of Thousand Oaks Civil Justice Association of California CSAC Excess Insurance Authority DJI Technology Fire Districts Association of California LIUNA Local 792 SB 807 Page 15 Los Angeles County Professional Peace Officers Association Los Angeles Police Protective League Orange County Board of Supervisors Orange County Professional Firefighters Association, Local 3631 Riverside Sheriffs Association San Bernardino County Ventura Council of Governments Opposition None on file. Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916) 319-2200 SB 807 Page 16