BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2306 (Chau)
As Amended March 28, 2014
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
RD
SUBJECT
Constructive invasion of privacy: liability
DESCRIPTION
Existing law makes a person liable for a constructive invasion
of privacy for attempting to capture, in a manner highly
offensive to a reasonable person, any type of 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, as specified.
This bill would remove the limitation of this provision to the
use of a visual or auditory enhancing device, and instead make
the person liable for constructive invasion of privacy through
the use of any device that otherwise takes a physical impression
of another person engaging in a personal or familial activity as
otherwise prohibited under existing law.
BACKGROUND
In 1998, in response to the tragic death of Princess Diana,
California became the first state in the nation to pass
legislation to attempt to rein in overzealous and aggressive
photographers and reporters, known as "paparazzi." In order to
supplement the common law tort of invasion of privacy, the
Legislature created a statutory cause of action for "invasion of
privacy" that imposes liability on any person who: (1) intrudes
upon the private space of another person; (2) in order to
capture images or recordings of that person engaging in a
personal or familial activity; (3) in a manner that is offensive
(more)
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to a reasonable person. (Civ. Code Sec. 1708.8; SB 262 (Burton,
Ch. 1000, Stats. 1998).) The statute was subsequently amended
in 2005 to additionally provide that assault committed with
intent to photograph or record a person is subject to the same
remedies available for physical or constructive invasion of
privacy. (AB 381 (Montanez, Ch. 424, Stats. 2005).)
Despite the enactment of these statutory remedies, there
continued to be a flurry of news reports on the increasing
tension between celebrities and photographers, which at times
have escalated to the point of physical confrontations. In
response, in 2009, AB 524 (Bass, Ch. 449, Stats. 2009) was
enacted to expand the reach of the state's "invasion of privacy"
statute to include the sale, publication, or broadcast of a
physical impression of someone engaged in a personal or familial
activity if the person knows that the image was unlawfully
obtained. By attaching liability to publishers who use
paparazzi, the bill sought to remove the financial incentive for
paparazzi to continue pursuing and photographing celebrities.
This bill now seeks to expand liability for "constructive
invasion of privacy" by applying the statute to the use of any
device, thus, removing the existing restrictions that a device
must be "visual or audio enhancing."
CHANGES TO EXISTING LAW
Existing common law recognizes four distinct categories of the
tort of "invasion of privacy:" (a) intrusion upon a plaintiff's
seclusion or solitude; (b) public disclosure of private facts;
(c) publicity that places the plaintiff in a "false light;" and
(d) appropriation of a plaintiff's likeness or image for the
defendant's advantage. (Turnbull v. American Broadcasting
Companies, (2004) 32 Media L. Rep. 2442.)
Existing law makes a person liable for "physical invasion of
privacy" for knowingly entering onto the land of another person
or otherwise committing a trespass in order to physically invade
the privacy of another person with the intent to capture any
type of visual image, sound recording, or other physical
impression of that person engaging in a personal or familial
activity, and the physical invasion occurs in a manner that is
offensive to a reasonable person. (Civ. Code Sec. 1708.8 (a).)
Existing law makes a person liable for "constructive invasion of
privacy" for attempting to capture, in a manner highly offensive
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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. (Civ. Code Sec. 1708.8 (b).)
Existing law defines "personal or familial activity" as
including, but not limited to, intimate details of the
plaintiff's personal life, interactions with family or
significant others, or other aspects of the plaintiff's private
affairs or concerns. (Civ. Code Sec. 1708.8 (l).)
Existing law provides that a person who violates the "invasion
of privacy" statute, or who directs, solicits, actually induces,
or actually causes another person to violate the statute would
be subject to specified damages, including a civil fine of not
less than $5,000 and not more than $50,000. (Civ. Code Sec.
1708.8(d), (e).)
This bill would, with respect to the statutory tort of
"constructive invasion of privacy," would remove the requirement
that the device used to capture the physical impression of the
plaintiff enhance either the video or audio.
COMMENT
1. Stated need for the bill
According to the author:
AB 2306 clarifies California privacy laws by making the use of
any device a constructive invasion privacy.
For years, California has been at the forefront of both
innovation and privacy protection. California is unique in
that its Constitution expressly protects an individual's right
to privacy from both governmental and private actors.
For the past decade, 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
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location all within the context of their smartphones.
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. As
the Federal Aviation Administration prepares to integrate
drones into our nation's airspace, manufacturers and
industries will be required to comply with federal, state and
other laws as they try to harness the tremendous potential of
this new technology while also respecting individual privacy.
[ . . . ]
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 task[s] 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.
AB 2306 will clarify 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 other visual
or auditory enhancing devices.
2. Existing standards for "constructive invasion of privacy"
would not change
Under existing law, a constructive invasion of privacy is deemed
to have occurred if a person attempts to capture in a manner
highly offensive to a reasonable person any 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. (Civ. Code Sec. 1708.8(b).) As a result, unless an audio
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or visual enhancing device is used, there can be no constructive
invasion of privacy. This bill would remove the limitation that
devices used to violate a person's privacy must have visual or
audio enhancing capabilities thereby allowing for a finding of
constructive invasion of privacy where newer technologies enable
individuals to invade the privacy of others using devices (such
as drones) without any audio or visual enhancing capabilities.
The author argues that such a change is justified in light of
evolving technologies that would result in the same outcome
(constructive invasion of a person's privacy) without having to
resort to audio or visual enhancing devices:
The critical requirement for the constructive invasion of
privacy is the fact that the use of a device made possible an
invasion that otherwise could only have occurred with a
physical trespass, not the type of device used. New
technologies in the future could permit an invasion of privacy
without a physical trespassing even though the device might
not qualify as a "visual or auditory enhancing device."
AB 2306 will clarify 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 other visual
or auditory enhancing devices. All of the other existing
elements of the statutes still must be met in order for
liability to exist.
Staff notes that this bill would not change the elements of
constructive invasion of privacy - it would merely change the
devices through which the invasion could be deemed to have
occurred. In other words, just as under existing law, the
plaintiff would have to prove that the defendant attempted to
capture (1) in a manner highly offensive to a reasonable person,
(2) any visual image, sound recording or other physical
impression of another person engaging in a personal or familial
activity, (3) under circumstances in which the plaintiff had a
reasonable expectation of privacy, and that (4) absent the use
of the device, the image or recording could not have been
achieved without trespass. As a practical matter, these
elements are what actually help ensure that ordinary uses of
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basic technology, such as non-zoom cameras on one's phone, would
not result in a violation of this law. Accordingly, under this
bill, it is highly unlikely that a person could be found in
violation of this law when making the ordinary use of their
device for their private purposes without any intention of
capturing the private or familial moments of another person.
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : AB 1256 (Bloom, 2014) would revise
the physical and constructive invasion of privacy civil
liability provisions to, among other things, apply to private
activities as well, as specified. AB 1256 is currently
awaiting hearing in this Committee.
Prior Legislation :
SB 15 (Padilla, 2013) would have, among other things, clarified
that a constructive invasion of privacy may occur through the
use of an unmanned aircraft system, as defined.
SB 262 (Burton, Ch. 1000, Stats. 1998) See Background.
AB 381 (Monta�ez, Ch. 424, Stats. 2005) See Background.
AB 524 (Bass, Ch. 449, Stats. 2009) See Background.
AB 2479 (Bass, Ch. 685, Stats. 2010) See Background.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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