BILL ANALYSIS �
AB 2306
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CONCURRENCE IN SENATE AMENDMENTS
AB 2306 (Chau and Waldron)
As Amended August 22, 2014
Majority vote
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|ASSEMBLY: |78-0 |(May 15, 2014) |SENATE: |36-0 |(August 27, |
| | | | | |2014) |
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Original Committee Reference: JUD.
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.
The Senate amendments :
1)Incorporate, for chaptering purposes, changes proposed by AB
1256 (Bloom) of the current legislative session, that would
become operative if this bill and AB 1256 are both enacted and
this bill is enacted last.
2)Add a joint author and coauthor.
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.
2)Makes a person liable for constructive invasion of privacy
AB 2306
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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
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.
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.
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.
FISCAL EFFECT : None
COMMENTS : This 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."
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 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.
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The critical requirement is that a device allowed the capturing
of an image that otherwise could only have been obtained with a
physical trespass.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0005400