SB 142
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB 142 (Jackson) – As Amended June 30, 2015
SENATE VOTE: 24-9
SUBJECT: CIVIL LAW: UNMANNED AIRCRAFT
KEY ISSUES:
1) SHOULD THE LAW SPECIFY THAT A PROPERTY OWNER HAS THE EXCLUSIVE
RIGHT TO OCCUPY AND USE THE AIRSPACE ABOVE HIS OR HER PROPERTY, UP
TO AN ELEVATION OF 350 FEET ABOVE THE PROPERTY, AND THAT ENTRY OF
AN UNMANNED AIRCRAFT, OR UNMANNED AIRCRAFT SYSTEM, INTO THAT
ZONE OF PROTECTED AIRSPACE CONSTITUTES A TRESPASS?
2) SHOULD THE LAW SPECIFY THAT A PROPERTY OWNER WHOSE PROTECTED
AIRSPACE IS VIOLATED BY THE INTRUSION OF AN UNMANNED AIRCRAFT
INTO THAT AIRSPACE IS ABLE TO RECOVER EITHER THE COST OF THE
DAMAGE TO THE AIRSPACE, OR THE BENEFIT GIVEN TO THE USER OF THE
AIRSPACE BY PASSAGE THROUGH THE AIRSPACE, WHICHEVER IS GREATER?
SYNOPSIS
This bill would effectively create a no-fly zone for unmanned aircraft and unmanned aircraft
systems (UAS, or drones) of 350 feet over private property in California. The protected zone
would extend from the ground up and into the airspace above the property, to an elevation of
350 feet above the property. The author states that it is her intent to “clarify that the operation
of an unmanned aerial vehicle below 350 feet overlying the property of another without
permission could constitute a trespass.” SB 142 appears to establish a new and unusual
definition of trespass. Under common law, property owners have the right of exclusive control
to some, but not all, of the airspace above their land. This bill establishes the concept that an
owner of real property has the right to the exclusive control of airspace over his or her property,
up to an elevation of 350 feet above the property, regardless of whether the owner is using the
airspace. Furthermore, it establishes this zone of private protected airspace extending up to an
elevation where it is unlikely that property owners could either use or occupy all of the airspace
beneath it. Nevertheless, despite the zone of protected airspace that the bill would create if it
became law, the right to the airspace above a person’s land would still be subject to both the
state doctrine of overflight and federal regulations. So despite a zone of protection above
private property, because of federal regulations, a landowner would not necessarily have the
right of exclusive occupation and use of his or her airspace. For example, FAA regulations
consider a building that is 200 feet above ground level, or higher, within three nautical miles of
an airport to be an obstruction into federal airspace.
The bill provides specific exemptions for “any otherwise lawful activities of law enforcement
personnel or employees of governmental agencies or other public or private entities that may
have the right to enter land by operating an unmanned aircraft or unmanned aircraft system
within the airspace overlaying the real property of another.” It also establishes that a person
who wrongfully occupies the airspace above real property by operating a drone in the airspace
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is liable for damages pursuant to Section 3334 of the Civil Code. That section states that
damages for the “wrongful occupation of real property” is the greater of the reasonable rental
value of that property, or the benefits obtained by the person wrongfully occupying the property
by reason of that wrongful occupation, which anticipates that the use of a person’s property is
prolonged enough that a value can be placed upon its use. Unlike traditional cases of trespass
in which the property is used (or damaged) for a period of time that is prolonged enough to
allow the value of use (or damage) to be calculated, it would be difficult to assess what tangible
harm would be caused by the flight of a drone 349 feet over a person’s property. Supporters say
that “UVA technology is evolving rapidly and it is important that our civil laws be updated to
protect our citizens’ privacy.” Meanwhile, the Association for Unmanned Vehicle Systems
International (AUVSI), in opposition to the bill, writes that SB 142 would “have an adverse
impact on an industry that wants to be regulated and takes safety, risk and liability seriously.”
This bill, which is author-sponsored, recently passed the Assembly Privacy and Consumer
Protection Committee by a vote of 11-0.
SUMMARY: Specifies that the operation of an unmanned aircraft at an elevation that is 350 or
less above the property of another without permission constitutes a trespass. Specifically, this
bill:
1) Provides that a person wrongfully occupies the real property and is liable for damages if,
without the express permission of the person with the legal authority to grant access or
without legal authority, he or she operates an unmanned aircraft or unmanned aircraft system
less than 350 feet above ground level within the airspace overlaying the real property.
2) Provides the following definitions:
a) “Unmanned aircraft” means an aircraft that is operated without the possibility of direct
human intervention from within or on the aircraft.
b) “Unmanned aircraft system” means an unmanned aircraft and associated elements,
including 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.
c) “Aircraft” does not include an unmanned aircraft that is operated without the possibility
of direct human intervention from within or on the aircraft.
3) Provides that the provisions of the bill shall not be construed to impair or limit any otherwise
lawful activities of law enforcement personnel or employees of governmental agencies or
other public or private entities that may have the right to enter land by operating an
unmanned aircraft or unmanned aircraft system within the airspace overlaying the real
property of another.
4) Provides that the bill is not intended to limit the rights and defenses available at common law
under a claim of liability for wrongful occupation of real property.
EXISTING LAW:
1) Pursuant to federal law, defines “navigable airspace” as airspace above the minimum
altitudes of flight prescribed by federal law and regulations, including airspace needed to
ensure safety in the takeoff and landing of aircraft. (49 U.S.C. 40102(a)(32).)
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2) Provides that “[l]and is the material of the earth, whatever may be the ingredients of which it
is composed, whether soil, rock, or other substance, and includes free or occupied space for
an indefinite distance upwards as well as downwards, subject to limitations upon the use of
airspace imposed, and rights in the use of airspace granted, by law.” (Civil Code Section
659.)
3) Provides that ownership of the space above the land and waters of this State is vested in the
several owners of the surface beneath, subject to the right of flight. (Public Utilities Code
Section 21402.)
4) Provides that the detriment caused by the wrongful occupation of real property, among other
things, is deemed to include the value of the use of the property for the time of that wrongful
occupation, the reasonable cost of repair or restoration of the property to its original
condition, and the costs, if any, of recovering the possession. (Code of Civil Procedure
Section 3334 (a).)
5) Provides that, except as specified in #2, above, the value of the use of the property shall be
the greater of the reasonable rental value of that property or the benefits obtained by the
person wrongfully occupying the property by reason of that wrongful occupation and that if a
wrongful occupation of real property subject to this section is the result of a mistake of fact
of the wrongful occupier, the value of the use of the property, for purposes of #2, above, shall
be the reasonable rental value of the property. (Code of Civil Procedure Section 3334 (b).)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: Property rights in California include rights to the “free or occupied space [above
the property] for an indefinite distance upwards as well as downwards, subject to limitations
upon the use of airspace imposed, and rights in the use of airspace granted, by law.” (Civil Code
Section 659. All further statutory references are to this code, unless otherwise indicated.) The
right to the airspace above this state is vested in the owners of the land below, but is subject to
both the state doctrine of overflight and federal regulations. (Drennen v. County of Ventura
(1974) 38 Cal.App.3d 84, 87, citing Pub. Util. Code Section 21402, Civil Code Section 659.)
The author states that it is her intent to “clarify that the operation of an unmanned aerial vehicle
below 350 feet overlying the property of another without permission could constitute a trespass.”
According to the author:
Drone technology is exciting and offers great new commercial and recreational
opportunities for Californians. But we need to make clear what the rules are, and avoid
situations where people start crossing that line into someone else’s private space. This
bill attempts to clear up some of the ambiguity surrounding private property and drone
operations by marking the boundary between public 'navigable airspace' and private
property.
It is worth noting that the bill’s prohibition upon entry by UAS into personal airspace is not tied
to any annoying, offensive, or invasive conduct by the device (i.e. harassing animals, hovering at
a low altitude, taking photographs), or any unlawful or obnoxious intent of the operator (i.e. to
invade privacy, harass animals, or repeated flyovers).
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SB 142 provides specific exemptions for “any otherwise lawful activities of law enforcement
personnel or employees of governmental agencies or other public or private entities that may
have the right to enter land by operating an unmanned aircraft or unmanned aircraft system
within the airspace overlaying the real property of another.”
History of Reluctance by Courts to Establish a Line in the Air, Below Which Property Owners
Have Exclusive Rights. The Ninth Circuit, in Hinman v. Pacific Air Transport (9th Cir. 1936)
84 F.2d 755, 758, ridiculed as “utterly impractical” and “at variance with the reason of law,” the
idea that a property owner could have the right to exclude all aircraft from flying over his or her
property. In Hinman, the plaintiff owned 72 acres of land in Burbank that were adjacent to an
airport. The plaintiff sued the operators of commercial airlines at the airport, alleging that
defendants “disturbed, invaded and trespassed upon the ownership and possession of plaintiffs’
tract"; that at said times defendants have operated aircraft in, across, and through said airspace at
altitudes less than 100 feet above the surface.” (Id. at p. 758 [emphasis added].)
If such a rule were conceivable, how will courts protect the various landowners in their
varying claims of portions of the sky? How enforce a right of ejectment or restitution?
Such a rule is not necessary for the protection of the landowner in any right guaranteed
him by the Constitution in the enjoyment of his property. If a right like this were
recognized and upheld by the courts, it would cause confusion worse confounded. It is
opposed to common sense and to all human experience.
We cannot shut our eyes to the practical result of legal recognition of the asserted claims
of appellants herein, for it leads to a legal implication to the effect that any use of
airspace above the surface owner of land, without his consent would be a trespass either
by the operator of an airplane or a radio operator. We will not foist any such chimerical
concept of property rights upon the jurisprudence of this country. (Hinman v. Pacific Air
Transport, supra, at p. 759.)
The court only seemed to take the plaintiff’s claims seriously when it considered allegations that
the aircraft were flying as low as five feet above the plaintiff’s land:
We now consider the allegation of the bill that appellees' airplanes, in landing, glide
through the air, within a distance of less than 100 feet to the surface of appellants' land, or
possibly to a distance within five feet thereof, at one end of his tract. This presents
another question for discussion. Whether such close proximity to appellants' land may
constitute an impairment of his full enjoyment of the same is a question of fact. If it
does, he may be entitled to relief in a proper case. (Id. at p. 759.)
Likewise, the U.S. Supreme Court, in the case of United States v. Causby (1946) 328 U.S. 256,
261, recognized “that the airspace is a public highway,” so the owner of the property below only
has exclusive control of the space immediately above the land. Like the court in Hinman, the
Court declined to delineate the boundary between public and private airspace. (United States v.
Causby, supra, 328 U.S., at p. 266 [“we need not determine at this time what those precise limits
are”].) However, the Court did at least recognize on the facts particular to that case that
Causby’s property interests were encroached upon by military aircraft flying 83 feet above their
land. (Id. at p. 258 [emphasis added].) Causby and Hinman show how reluctant courts are to
recognize trespass in the airspace above real property. There is no precedent in common law for
recognizing a zone of protected air space above private property higher than 100 feet above the
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real property that would allow the owner of the property the right of exclusive use and
occupation of that airspace.
This Bill Appears to Create a New and Unusual Definition of Trespass. Under common law,
property owners have the right of exclusive control to some, but not all, of the airspace above
their land. The right of an owner to exert exclusive control generally correlates to the area of
airspace that the property owner is able to “occupy and use.” Therefore, the property owner’s
rights are only violated in cases where there is a “direct and immediate interference” with the
owner’s use of the airspace above his or her land, which constitutes an “intrusion so immediate
and direct as to subtract from the owner's full enjoyment of the property and to limit his
exploitation of it.” (United States v. Causby, supra, 328 U.S. at p. 265.)
This bill establishes a new legal concept: that an owner of real property has the right to the
exclusive control of airspace over his or her property, up to an elevation of 350 feet above the
property, regardless of whether the owner can or does use the airspace. Furthermore, it
establishes this zone up to an elevation where it is unlikely that property owners could either use,
or occupy all of the airspace beneath it. For purposes of comparison, the top of the Capitol is
247 feet high. Therefore, a drone flying 100 feet above the top of the Capitol – which would
likely be barely visible to the naked eye – would still be at an elevation low enough to be
trespassing in the airspace of a property owner (if it were over private property).
In support of the 350-foot demarcation, the author writes:
The 350 foot height limit was chosen because to exclude drones that are operated in a
manner that invades privacy. While this height limit will not address all potential harms
and privacy concerns, the limit represents a good balance between privacy while allowing
for zone for operation. Interfering with a landowner's right to enjoy their property would
be very minimal and the limit is high enough to limit the use of technology to invade
privacy. Meanwhile, there is a legally permissible corridor for unmanned aircraft systems
to fly. The purpose is set expectations about where unmanned aircraft systems should fly
in a way that does not invade privacy or private property rights.
Given that common law seems to support a cause of action for trespass into the airspace above
private property at an elevation of more than 100 feet above the real property, the Committee
may wish to inquire whether a lower height, perhaps closer to 100 feet, would more closely align
with common law precedent regarding trespass.
Damages for Trespass Under SB 142 and Under Common Law. SB 142 provides that, under
specified circumstances, a “person wrongfully occupies real property and is liable for damages
pursuant to Section 3334.” Section 3334 provides that, for the determination of damages caused
by the “wrongful occupation of real property” (other than cases of eminent domain and unlawful
detainer), the detriment caused by the wrongful occupation of real property . . . is deemed to
include the value of the use of the property for the time of that wrongful occupation. (Section
3334(a).) The value of the use of property is the greater of the reasonable rental value of that
property, or the benefits obtained by the person wrongfully occupying the property by reason of
that wrongful occupation. (Section 3334 (b)(1).) Therefore, Section 3334 anticipates that the
use of a person’s property is generally prolonged enough that a value can be placed upon its use:
for example, a tenant who outstays the expiration of a lease, a squatter in a vacant house, or even
a source of contamination left by a former owner. (See 9201 San Leandro LLC v. Precision
Castparts Corp. (N.D. Cal. 2008) 548 F. Supp. 732.) Damages in these cases are quantifiable,
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based upon either the harm to the property (i.e. the cost of removing and cleaning contaminants
left on property), or the benefit to the user (i.e. the fair market value of a renter staying in the
apartment, or a squatter staying in a vacant house). Similarly, flights less than one hundred feet
above the plaintiff’s land in Causby had a direct and substantial impact on the land (specifically,
the chickens on the land), thus qualifying as a taking:
Since the United States began operations in May, 1942, its four-motored heavy bombers,
other planes of the heavier type, and its fighter planes have frequently passed over
respondents' land buildings in considerable numbers and rather close together. They
come close enough at times to appear barely to miss the tops of the trees, and at times so
close to the tops of the trees as to blow the old leaves off. The noise is startling. And, at
night, the glare from the planes brightly lights up the place. As a result of the noise,
respondents had to give up their chicken business. As many as six to ten of their chickens
were killed in one day by flying into the walls from fright. The total chickens lost in that
manner was about 150. Production also fell off. The result was the destruction of the use
of the property as a commercial chicken farm. Respondents are frequently deprived of
their sleep, and the family has become nervous and frightened. Although there have been
no airplane accidents on respondents' property, there have been several accidents near the
airport and close to respondents' place. These are the essential facts found by the Court of
Claims. On the basis of these facts, it found that respondents' property had depreciated in
value. (P. 259)
Unlike the extremely low and loud flights in Causby, and the contaminants left behind in 9201
San Leandro LLC, it is difficult to assess what tangible harm would be caused by the flight of a
drone at an elevation of 349 feet over a person’s property. What is the value of airspace used for
seconds, or perhaps even a minute, as a drone passes above a person’s property? What benefit
would a drone operator gain from passing through a person’s property? How could either the
damage to the airspace, or the benefit to the user of the airspace, be quantified?
As an alternative to the uncertain and difficult to quantify damages pursuant to Section 3334, the
author may wish to consider specifying other damages for violations of trespass into private
airspace, such as a fine (i.e. $250 per entry), injunctive relief, and possibly disgorgement of
profits.
Federal Regulation of Overflight. Federal law provides that “any citizen of the United States
[has] a public right of freedom of transit through the navigable airspace of the United States.”
(49 U.S.C. 1304.) Federal regulations provide for a “minimum safe altitude” which varies based
on place and type of conditions. Section 119 of Part 91 of the Federal Aviation Regulations
(FAR) provides that, “Except when necessary for takeoff or landing, no person may operate an
aircraft below the following altitudes:”
(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without
undue hazard to persons or property on the surface.
(b) Over congested areas. Over any congested area of a city, town, or settlement, or over
any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle
within a horizontal radius of 2,000 feet of the aircraft.
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(c) Over other than congested areas. An altitude of 500 feet above the surface, except
over open water or sparsely populated areas. In those cases, the aircraft may not be
operated closer than 500 feet to any person, vessel, vehicle, or structure.
(d) Helicopters, powered parachutes, and weight-shift-control aircraft. If the operation is
conducted without hazard to persons or property on the surface.
(1) A helicopter may be operated at less than the minimums prescribed in paragraph
(b) or (c) of this section, provided each person operating the helicopter complies with
any routes or altitudes specifically prescribed for helicopters by the FAA; and
(2) A powered parachute or weight-shift-control aircraft may be operated at less than
the minimums prescribed in paragraph (c) of this section. [Docket No. 18334, 54 FR
34294, Aug. 18, 1989, as amended by Amdt. 91–311, 75 FR 5223, Feb. 1, 2010]
As mentioned above, Drennen v. County of Ventura, provides that the right to the airspace above
a person’s land is subject to both the state doctrine of overflight and federal regulations. (County
of Ventura, supra, 38 Cal.App.3d at p. 87, citing Public Utilities Code Section 21402 and Civil
Code Section 659.) For example, FAA regulations consider a building that is 200 feet above
ground level, or higher, within 3 nautical miles of an airport to be an obstruction into federal
airspace. (14 C.F.R. § 77.17(a)(2) (2015).) Landowners within that zone must also, if requested
by the FAA, notify the FAA of any construction or alteration of a structure that could impede air
travel, such as a structure that is more than 200 feet above ground level, or even an antenna that
is more than 20 feet tall. (14 C.F.R. §§ 77.9(a), 77.9 (e)(4) (2015).) Therefore, even if the bill
created a zone of protection above private property, because of federal regulations, a landowner
would not necessarily have the right of exclusive occupation and use of that airspace.
Federal Regulation of “Drones.” Congress effectively closed the national airspace to
commercial drone flights in the Federal Aviation Administration (FAA) Modernization and
Reform Act of 2012 (Act). (H.R.658, 112th Congress (2011-2012).) The Act established a
framework for safely integrating unmanned aircraft into the national airspace no later than
September 30, 2015. The Act does, however, permit certain commercial unmanned aircraft
operations to take place before the integration framework is implemented. To date, a handful of
commercial operators have applied for, and received, permission to fly commercial drones,
including several film production companies, construction, surveying, and inspection companies,
and a number of real estate firms. The Act also sets out a separate interim operation exemption
for “public unmanned aircraft,” allowing public agencies like police departments to operate
drones upon application, provided the aircraft and their operators meet certain minimum
standards. (See Section 334 of the Act.)
Unlike commercial drone operations, flying a UAS “strictly for hobby or recreational use” is
allowed today, as long as the operator pilots the craft in accordance with specific safety rules.
(See Section 336 of the Act.) As a result, private citizens pilot most of the drones that are in use
today. The Act’s safety rules include a requirement to operate these recreational aircraft “in
accordance with a community-based set of safety guidelines,” but the lack of more
comprehensive rules establishing clear boundaries for when, where, and how these craft are to be
operated has raised concerns. (Id.) Under a 1981 FAA advisory circular (AC 91-57), the FAA
authorized the use of "small" aircraft (under 55 pounds) for recreational purposes without a
certificate of authorization (basically a permit) from the FAA, as long as the aircraft is operated
below 400 feet and at least five miles from an airport.
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However, on February 15, 2015, the FAA proposed a new framework of regulations to allow the
use of small UAS in the airspace from the ground up to an elevation of 500 feet. If enacted, the
proposed rules would limit flights to non-recreational, daylight uses and would require the UAS
pilot to maintain a visual line of sight with the drone. The FAA has suggested that it may create
a less strict regulatory framework for “micro” unmanned aircraft (under 4.4 pounds).
While the proposed FAA rules could potentially preempt state law (i.e. to the extent that it would
be impossible to comply with both state law and the FAA regulations), this bill would establish a
property right in the airspace up to 350 feet directly above private property, so that drones could
not be flown at heights lower than 350 feet over private land, homes, or buildings. By drawing
the line at 350 feet, the author intends to create a “transit zone in the airspace between 350 feet to
500 feet through which a drone could travel over private property from one place to another
without entering FAA-regulated national airspace.”
Other remedies available to property owners subject to overflight. Explaining the need for the
bill, the author states that:
Drones have a lot of potentially useful and extremely innovative uses, but invading our
privacy and property without permission shouldn’t be among them. When we’re in our
backyards, with our families, we have an expectation that we have a right to privacy.
This bill extends these long-established definitions of trespassing and privacy, and brings
them into the 21st century by applying them to drones.
Current law provides alternative ways to address the risks posed by drones to the quiet
enjoyment of private property, as well as privacy.
Nuisance is an interference with the use and enjoyment of the land as opposed to trespass, which
“involves physical damage or tangible intrusion. All intangible intrusions, such as noise, odor,
or light alone, are dealt with as nuisance cases.” (11-384 California Real Estate Law & Practice
Section 384.01.) A nuisance is defined as follows:
Anything which is injurious to health, including, but not limited to, the illegal sale of
controlled substances, or is indecent or offensive to the senses, or an obstruction to the
free use of property, so as to interfere with the comfortable enjoyment of life or property,
or unlawfully obstructs the free passage or use, in the customary manner, of any
navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or
highway, is a nuisance. (Section 3479.)
The statutes distinguish between a “private nuisance” (which usually affects just one person) and
a “public nuisance” (which affects a whole community or neighborhood), either of which could
be implicated by the operation of a drone in a manner that is bothersome or invasive. Flying a
drone over a person’s private property could certainly be a private nuisance, since it could be an
obstruction or interference with free use and/or comfortable enjoyment of property.
Constructive invasion of privacy occurs when a 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 another person engaging in a private, personal, or familial activity, through the use
of any device if the image, sound recording, or other physical impression could not have been
achieved without the device, regardless of whether there is a physical trespass. Assembly Bill
2306 (Chau, Chap. 858, Stats. 2014) amended subdivision (b) of Section 1708.8 to provide that a
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“constructive” invasion of the privacy occurs “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. The critical requirement is that a device allowed the
capturing of an image that otherwise could only have been obtained with a physical trespass.”
Constructive invasion of privacy occurs when the 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 the plaintiff engaging in a private, personal, or familial activity, through the use of
any 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 device was
used. (Section 1708.8(b).)
Although the author’s well-intentioned goal is to protect privacy, there is no requirement in the
bill that the unmanned aircraft must enter into the plaintiff’s airspace with the intent to intrude
upon the plaintiff’s privacy, or that it actually does something to invade the plaintiff’s privacy.
ARGUMENTS IN SUPPORT: According to the California Police Chiefs Association, “UVA
technology is evolving rapidly and it is important that our civil laws be updated to protect our
citizens’ privacy. At the same time, it is also important that we not impede legitimate law
enforcement investigations that may utilize UVA technology. We believe that your SB 142, as
amended, strikes the necessary balance.”
ARGUMENTS IN OPPOSITION: The Association for Unmanned Vehicle Systems
International (AUVSI), in opposition to the bill, writes that SB 142 would “have an adverse
impact on an industry that wants to be regulated and takes safety, risk and liability seriously.”
AUVSI makes the following specific objections to the bill, alleging that “[a]s written, SB 142
would do the following:
•
All but bans the operation of any UAV at low altitudes. The bill as written requires
consent from a landowner to operate a UAV over real property below 350 feet. Requiring
consent from individual landowners for emerging applications of small UAVs that traverse
low-altitude airspace, would be nearly impossible from an operational perspective;
•
Create inconsistencies with Federal Law. This type of property right over the airspace
was resoundingly rejected by the Supreme Court in United States v. Causby, which held that
property rights do not extend infinitely into the sky;
•
Adversely impact the UAS community, instead of focusing on bad actors, operating
out of compliance with FAA authorization. The bill should clarify that the “legal authority”
standard could be met by operating in a manner consistent with FAA authorizations or
regulations, or by explicitly exempting operations that are conducted in a manner consistent
with FAA authorizations or regulations.
AUVSI recommends that the bill be amended to “provide the clear legal authority for UAS use
in the bill,” and specifically suggests that the following be exempt from its provisions: “an entity
which has received an authorization, certification, experimental certificate, or waiver issued by
the Federal Aviation Administration (FAA) pursuant to Section 333 in the FAA Modernization
and Reform Act of 2012.”
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CONCERN: TechNet writes that “While the stated intent of the bill, to protect individual
privacy against intrusive, eavesdropping activity, is a sensible and achievable policy goal, as
written, it could severely restrict legitimate uses of this developing technology.”
Similar Pending Legislation. AB 856 (Calderon) provides that a person is liable for physical
invasion of privacy when the defendant knowingly enters “into the airspace” above the land of
another person without permission. In order to be actionable, AB 856 requires that such entry
must be made in order to capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a private, personal, or familial activity and the invasion
occurs in a manner that is offensive to a reasonable person.
Prior Related Legislation. AB 1256 (Bloom, Chap. 852, Stats. 2014) created a cause of action
for the capture of a visual image or sound recording of another person with the use of an
enhanced visual or audio device liable for "constructive" invasion of privacy, and made it illegal,
and subject to civil liability, to attempt to obstruct, intimidate, or otherwise interfere with a
person who is attempting to enter or exit a school, medical facility, or lodging, as defined.
AB 2306 (Chau, Chap. 858, Stats. 2014) amended the Civil Code prohibition against
“constructive” invasion of privacy by taking account 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 was not defined in the existing statute.
SB 606 (De Leon, Chap. 348, Stats. 2013) increased the penalties for the intentional harassment
of a child or ward of another person because of that person's employment and it specified that
conduct occurring during the attempt to capture a child's image or voice may constitute
harassment if specified conditions occur.
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.)
AB 2479 (Bass, Chap. 685, Stats. 2010) provided that a person who commits “false
imprisonment” with the intent to capture any type of visual image, sound recording, or other
physical impression of a plaintiff is subject to liability under the civil invasion of privacy statute
and, as such, liable for damages and remedies available pursuant to that statute. This bill also
amended the Vehicle Code to create heightened penalties for persons who engaged in unlawful
forms of reckless driving while attempting to capture a visual image of another person.
AB 524 (Bass, Chap. 499, Stats. 2009) amended the "invasion of privacy" statute (Civil Code
Section 1708.8) so that a person who sells, transmits, publishes, or broadcasts an image,
recording, or physical impression of someone engaged in a personal or familial activity violates
the state's "invasion of privacy" statute. Previously, the statute had only applied to the person
who wrongfully obtained the image, recording, or physical impression, but not necessarily the
entity that sold or published the image, recording, or impression.
SB 142
Page 11
REGISTERED SUPPORT / OPPOSITION:
Support
American Chemistry Council
California Police Chiefs Association
Privacy Rights Clearinghouse
Several individuals
Opposition
Association for Unmanned Vehicle Systems International (AUVSI)
CSAC Excess Insurance Authority
Concern
TechNet
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334