BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2306|
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THIRD READING
Bill No: AB 2306
Author: Chau (D)
Amended: 3/28/14 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 7-0, 6/10/14
AYES: Jackson, Anderson, Corbett, Lara, Leno, Monning, Vidak
ASSEMBLY FLOOR : 78-0, 5/15/14 (Consent) - See last page for
vote
SUBJECT : Constructive invasion of privacy: liability
SOURCE : Author
DIGEST : This bill expands a person's potential liability for
constructive invasion of privacy, by removing the limitation
that the person uses a visual or auditory enhancing device, and
instead makes the person liable when using any device to engage
in the specified unlawful activity.
ANALYSIS : Existing common law recognizes four distinct
categories of the tort of "invasion of privacy:" (1) intrusion
upon a plaintiff's seclusion or solitude; (2) public disclosure
of private facts; (3) publicity that places the plaintiff in a
"false light;" and (4) appropriation of a plaintiff's likeness
or image for the defendant's advantage.
Existing law:
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1.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.
2.Makes a person liable for "constructive invasion of privacy"
for 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.
3.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.
4.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.
This bill removes, with respect to the statutory tort of
"constructive invasion of privacy," the requirement that the
device used to capture the physical impression of the plaintiff
enhance either the video or audio.
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
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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
to a reasonable person. (SB 262, Burton, Chapter 1000, Statutes
of 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, Chapter 424, Statutes of 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, Chapter 449, Statutes of 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
ARGUMENTS IN SUPPORT : 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
location all within the context of their smartphones.
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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.
ASSEMBLY FLOOR : 78-0, 5/15/14
AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Ch�vez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon,
Gorell, Gray, Grove, Hagman, Hall, Harkey, Roger Hern�ndez,
Holden, Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Maienschein, Medina, Melendez, Mullin, Muratsuchi, Nazarian,
Nestande, Olsen, Pan, Patterson, Perea, John A. P�rez, V.
Manuel P�rez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas,
Rodriguez, Salas, Skinner, Stone, Ting, Wagner, Waldron,
Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
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NO VOTE RECORDED: Mansoor, Vacancy
AL:k 6/12/14 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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