BILL ANALYSIS �
AB 2306
Page 1
Date of Hearing: May 6, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2306 (Chau) - As Amended: March 28, 2014
PROPOSED CONSENT
SUBJECT : Constructive Invasion of Privacy: Use of Device
KEY ISSUE : Should an existing statute that makes a person
liable for "constructive invasion of privacy" if that person
uses "a visual or auditory enhancing device" to capture images
or recordings be CLARIFIED to make CLEAR a person MAY BE liable
for using "any device," if the image or recording could only
have been captured by a physical trespass in the absence of the
device?
SYNOPSIS
Under existing law a person who attempts to capture certain
visual images or sound recordings of another, in a manner that
would be offensive to a reasonable person, may be liable for the
statutory offense of "invasion of privacy." The statute
distinguishes between two kinds of "invasion of privacy." A
"physical" invasion occurs when the defendant commits a physical
trespass in attempting to capture the image or recording. A
"constructive" invasion of privacy occurs when the defendant
captures the image or recording, without a physical trespass,
but with a "visual or auditory enhancing device" to capture an
image or recording that could only have been obtained by a
physical trespass in the absence of the device. This bill takes
cognizance of new technologies, including but not limited to
unmanned aerial devices (or "drones"), that could permit an
invasion of privacy without a physical trespass even though the
device might not qualify as a "visual or auditory enhancing
device," a term that is not defined in the existing statute.
For example, a drone with a standard (as opposed to "enhanced")
camera or microphone could achieve the same (or even more
detailed) images than an enhanced device used from afar. This
admirably succinct bill usefully clarifies existing law so that
the use of any device that allows one to obtain images or
recordings, that otherwise could only have been obtained by a
physical trespass, constitutes a "constructive invasion of
privacy." This seems fully consistent with the intent of the
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original legislation. Whether one uses powerful lenses or
recording devices to capture the image or recording from afar,
or whether one captures the image or recording by the use of
some other device does not particularly matter. The critical
requirement for the "constructive" invasion of privacy statute
is, or should be, that the use of the device made possible an
invasion that otherwise could only have occurred with a physical
trespass. It should be stressed, as well, that simply using
"any device" to capture an image or record a voice would not
create liability by itself. All of the other existing elements
of the statute must be met: the image or recording must still be
obtained in a manner that is "highly offensive" to a reasonable
person; it must still capture an image or recording of the
plaintiff engaging in a "personal or familial activity;" and
that activity must still take place under circumstances in which
the plaintiff had a "reasonable expectation of privacy." There
is no opposition to this bill.
SUMMARY : Makes a person liable for constructive invasion of
privacy when that person attempts to capture, in a manner that
is offensive to a reasonable person, any type of visual image,
sound recording, or other physical impression of the plaintiff
engaging in a personal or familial activity under circumstances
in which the plaintiff has a reasonable expectation of privacy,
through the use of any device, regardless of whether there is
physical trespass, if this image, sound recording, or other
physical impression could not have been achieved without a
trespass unless the device was used.
EXISTING LAW :
1)Makes a person liable for physical invasion of privacy if that
person (defendant) knowingly enters onto the land of another
person (plaintiff) without permission or otherwise committed a
trespass in order to physically invade the privacy of the
plaintiff with the intent to capture any type of visual image,
sound recording, or other physical impression of the plaintiff
engaging in a personal or familial activity and the physical
invasion occurs in a manner that is offensive to a reasonable
person. (Civil Code Section 1708.8 (a).)
2)Makes a person liable for constructive invasion of privacy
when that person (defendant) attempts to capture, in a manner
that is offensive to a reasonable person, any type of visual
image, sound recording, or other physical impression of
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another person (plaintiff) 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 is a
physical trespass, if this image, sound recording, or other
physical impression could not have been achieved without a
trespass unless the visual or auditory enhancing device was
used. (Civil Code Section 1708.8 (b).)
3)Provides that the above provisions do not apply to the
otherwise lawful activity of a law enforcement agency or other
governmental entity that, in the course of an investigation or
surveillance, has an articulable suspicion that capturing the
image or sound recording will produce evidence of suspected
illegal activity or other misconduct. (Civil Code Section
1708.8 (g).)
4)Makes a person who commits either physical or constructive
invasion of privacy, as described above, liable for up to
three times the amount of any general or special damages that
are proximately caused by the invasion of privacy. Specifies
that a person who commits invasion of privacy may also be
liable for punitive damages, as specified. (Civil Code
Section 1708.8 (d).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This non-controversial bill makes an important
clarification to California's "invasion of privacy" statute -
and in particular that portion of the statute dealing with a
"constructive" invasion of privacy. Under existing law a person
who attempts to capture certain visual images or sound
recordings of another person, in a manner that would be
offensive to a reasonable person, is liable for the statutory
offense of "invasion of privacy." The statute distinguishes
between two kinds of "invasion of privacy." A "physical"
invasion occurs when the defendant commits a physical trespass
in attempting to capture the image or recording. A
"constructive" invasion of privacy, on the other hand, occurs
when the defendant captures the image or recording, without a
physical trespass, through the use of a "visual or auditory
enhancing" device to capture an image or recording that could
only have been obtained by a physical trespass in the absence of
the device.
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This bill takes cognizance of the fact many new technologies
could permit an invasion of privacy without a physical trespass
even though those devices might not technically qualify as a
"visual or auditory enhancing device," a term that is not
defined in the existing statute. For example, a drone with a
standard (as opposed to "enhanced") camera or microphone could
achieve the same (or even more detailed) images than could an
enhanced device used from afar. This bill usefully clarifies
existing law so that the use of any device that allows one to
obtain images or recordings, that otherwise could only have been
obtained by a physical trespass, constitutes a "constructive
invasion of privacy." The critical requirement for a
"constructive" invasion of privacy, the author reasonably
contends, is not the type of device used, but whether the image
could only have been obtained through a physical trespass in the
absence of the device. This bill, accordingly, simply replaces
the overly-restrictive "visual or auditory enhancing device"
with "any device."
Bill Appears to be Consistent with Intent of the Statute and
Evolving Technology : The author's approach seems fully
consistent with the intent of the original legislation, in
general, and the provision dealing with "constructive" invasion
of privacy, in particular. "Constructive," as traditionally
defined in law, refers to an act or condition that may not
technically rise to the level of some legally essential
characteristic, "but acquires such a character in consequence of
the way in which it is regarded by a rule or policy of law."
(Black's Law Dictionary, 5th Edition.) In other words, it is
where the law presumes something to be true for practical policy
reasons. For example, when an encumbrance on a property has
been duly recorded, all persons are said to have "constructive
notice" of that encumbrance whether they have "actual notice" of
it or not. As to this bill, the existing "invasion of privacy"
statute makes a person liable for " physical invasion of privacy"
if that person entered onto the property of another without
permission (i.e. committed trespass) in order to take a
photograph of that other person engaged in a private familial
activity. A subdivision of that same statute makes a person
liable for " constructive invasion of privacy" if he or she takes
the same photograph using a visual "enhancing" device, without
committing a physical trespass, if the photograph could only
have been obtained by a physical trespass in the absence of the
visual enhancing device. But whether one uses enhanced or
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unusually powerful lenses to capture the image from afar, or
whether one captures the image by the use of some other device,
does not particularly matter. The critical requirement is that
a device allowed the capturing of an image that otherwise could
only have been obtained with a physical trespass.
As the author notes, "continuing innovation and improvements in
technology have paved the way for the dramatic growth of new
electronic devices. With a swipe of a finger, individuals can
access the Internet, take digital photography, and track their
location all within the context of their smartphones." One
could argue that any new device, if capable of capturing an
image or recording that could otherwise only be captured with a
physical trespass, could be construed as an "enhanced" visual or
auditory device. This may be true, but this bill will make it
clear that any "device" with that capacity will be covered by
the statute. This seems prudent as, given the pace of
technological change, one can only imagine what form such
devices will take in the future; but whatever they may be, if
those devices can achieve what could otherwise only be achieved
by physical trespass, it seems reasonable that they should fall
under the scope of the statute. It should be stressed, as well,
that simply using "any device" to capture an image or record a
voice would not create liability by itself. All of the other
existing elements of the statute must be met: the image or
recording must still be obtained in a manner that is "highly
offensive" to a reasonable person; it must still capture an
image or recording of the plaintiff engaging in a "personal or
familial activity;" and that activity must still take place
under circumstances in which the plaintiff had a "reasonable
expectation of privacy."
Comparison with SB 15 : This bill is similar in intent to but
much more narrow than SB 15 (Padilla, 2013) which passed out of
this Committee last year but subsequently failed passage in the
Assembly Public Safety Committee. Last year's SB 15 sought to
make changes to several different criminal and civil statutes to
address privacy threats posed by unmanned aircraft systems
(UAS), or drones. One portion of SB 15 would have amended the
invasion of privacy statute by specifying that a person was
liable for constructive invasion of privacy, assuming all other
statutory elements were met, if the person captured an image or
recording with a visual or auditory enhancing device that was
attached to a drone. Arguably that approach would have done
nothing to change existing law, since a person is liable if
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using a visual or auditory enhancing device, regardless of what,
if anything, the device is attached to. It would not matter if
the enhancing device was attached to a drone or a telephone
pole, or on the roof of a neighboring building. This bill,
however, makes a more substantive change: the use of any device
to capture an image or recording creates liability if the image
or recording could only have been obtained by a physical
trespass in the absence of a device, assuming all of the other
elements of the statute are met. In addition, the author notes
that a "drone" is typically defined as an "aerial" device, yet
as "technology continues to expand, drones will not be limited
to merely aerial devices. Instead, advances in robotics will
pave the way for manufacturers to develop new devices capable of
accessing previously inaccessible locations and performing
otherwise difficult tasks from a distance." This seems to
reinforce the wisdom of the author's decision to amend the
constructive invasion of privacy statute to include "any
device," rather than further enumerate specific devices that may
evolve beyond the confines of any statutory definition.
ARGUMENTS IN SUPPORT : According to the author, "AB 2306 updates
California privacy laws by making the use of any device a
constructive invasion of privacy." The author contends that
"continuing innovation and improvements in technology have paved
the way for the dramatic growth of new electronic devices. In
addition, the recent development of Unmanned Aircraft Systems,
often referred to as "drones," has the potential to
revolutionize the way we transport, photograph and survey." The
author believes that these recent developments have outpaced
existing law. For example, existing statutes only recognize a
"constructive" invasion of privacy if done "through the use of a
visual or auditory enhancing device." However, as "technology
continues to expand" manufacturers will "develop new devices
capable of accessing previously inaccessible locations and
performing otherwise difficult tasks from a distance. These
advancements will open new avenues of innovation and
productivity for our society, but will also have the potential
to erode our sense of privacy." The author writes that "AB 2306
will update California privacy laws to better encompass future
advances in technology. It makes it a constructive invasion of
privacy to capture an image or sound recording in a manner that
is offensive to a reasonable person, under circumstance where
the subject had a reasonable expectation of privacy, through the
use of any device. This would cover current and future advances
in technology including but not limited to the use of drones or
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other visual or auditory enhancing devices."
Recent and Pending Related Legislation : AB 1256 (Bloom, 2013)
would make it unlawful for a person to physically obstruct,
intimidate, or otherwise interfere with any person who is
attempting to enter or exit a "facility," as defined, and
revises the constructive invasion of privacy statute so as to
clarify that a person is liable for constructive invasion of
privacy for attempting to capture, in a manner that is offensive
to a reasonable person, any type of visual image, sounding
recording, or other physical impression of another person
engaging in a "private, personal, and familial activity," as
defined. (Pending in Senate Judiciary Committee.)
SB 15 (Padilla, 2103) would have required law enforcement to
obtain a warrant before using an unmanned aircraft under
circumstances that would require a warrant; specifies that any
person who uses a drone to capture the visual image, sound
recording, or other physical impression of another person, under
specified conditions, is liable for constructive invasion of
privacy; and imposes other restrictions on drone use. (Failed
passage in Assembly Public Safety Committee.)
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334