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AB 856
THIRD READING
Bill No:
Author:
Amended:
Vote:
AB 856
Calderon (D), et al.
7/2/15 in Senate
21
SENATE JUDICIARY COMMITTEE: 7-0, 7/14/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski
ASSEMBLY FLOOR: 78-0, 5/14/15 (Consent) - See last page for vote
SUBJECT: Invasion of privacy
SOURCE: Author
DIGEST: This bill renders a person liable for physical invasion of privacy when
that person knowingly enters upon the land of another, including by entry into the
airspace above the land, without permission in order to capture any type of visual
image, sound recording, or other physical impression of a person engaging in a
private, personal, or familial activity and the invasion occurs in a manner that is
offensive to a reasonable person.
ANALYSIS:
Existing law:
1)
Provides, in the California Constitution, that all people are by
nature free and independent and have inalienable rights. Among these are
enjoying and defending life and liberty, acquiring, possessing, and protecting
property, and pursuing and obtaining safety, happiness, and privacy. (Cal.
Const, Art. I, Sec. 1.)
2)
Recognizes four distinct tort actions for invasion of privacy: (a)
intrusion into private places, conversations or other matters; (b) public
disclosure of private facts; (c) presentation of a person to the public in a false
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light; and (d) appropriation of image or personality. (Shulman v. Group W
Productions, Inc. (1998) 18 Cal.4th 200, 214.)
3)
Renders a person liable for “physical invasion of privacy” for
knowingly entering onto the land of another person without permission or
otherwise committing a trespass in order to capture any type of visual image,
sound recording, or other physical impression of that person engaging in a
private, personal, or familial activity and the invasion occurs in a manner that is
offensive to a reasonable person. (Civ. Code Sec. 1708.8 (a).)
4)
Renders a person 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, sound recording, or other physical impression of another
person 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. (Civ. Code Sec. 1708.8 (b).)
Defines “private, personal, and familial activity” to include:
5)
6)

intimate details of a person’s personal life under circumstances in
which the person has a reasonable expectation of privacy;

interaction with the person’s family or significant others under
circumstances in which the person has a reasonable expectation of privacy;

any activity that occurs on a residential property under
circumstances in which the person has a reasonable expectation of privacy;
and

other aspects of the person’s private affairs or concerns under
circumstances in which the person has a reasonable expectation of privacy.
(Civ. Code Sec. 1708.8 (l).)
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 general, special, consequential, treble, and
punitive damages, as well as a civil fine of not less than $5,000 and not more
than $50,000. (Civ. Code Sec. 1708.8(d), (e).)
This bill:
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1)
Renders a person liable for physical invasion of privacy if, in
addition to meeting other existing requirements, the person knowingly enters
into the airspace above the land of another person without permission.
2)
Makes other technical changes to existing law.
Background
The development of small unmanned aircraft systems – known variously as
“unmanned aerial vehicles,” “remote piloted aircraft,” or simply “drones” –
promises to transform the way Californians interact with each other and their
environment. Just a few decades ago, small aircraft of this type were the exclusive
domain of hobbyists. Within the last decade or so, the public has become familiar
with the military’s use of unmanned aircraft to accomplish certain mission
objectives. However, in December 2013 when Amazon.com, FedEx, and UPS
announced their plans to integrate unmanned aircraft into their logistics and
delivery services, the possibility of widespread commercial adoption of this
technology became clear.
At present, the use of unmanned aerial vehicles in the skies over California is fairly
restricted. Congress effectively closed the national airspace to commercial drone
flights in the Federal Aviation Administration Modernization and Reform Act of
2012. That 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. Section 333 of the Act
authorizes the Secretary of Transportation to establish special interim requirements
for the operation of these aircraft by designated operators, provided the aircraft and
their operators meet certain minimum standards and have applied for a commercial
use exemption. 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.
Unlike commercial drone operations, flying an unmanned aircraft “strictly for
hobby or recreational use” is allowed today so long as the operator pilots the craft
in accordance with specific safety rules. As a result, private citizens are piloting
most of the drones one sees in California today. The Modernization and Reform
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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. Indeed, a recent poll shows just how
far this concern has permeated into the general public. According to Reuters,
“[s]ome 73 percent of respondents to [an online poll] said they want regulations for
the lightweight, remote-control planes,” and “forty-two percent went as far as to
oppose private ownership of drones, suggesting they prefer restricting them to
officials or experts trained in safe operation.” (Alwyn Scott, Americans OK With
Police Drones - Private Ownership, Not So Much: Poll <http://news.yahoo.com/
americans-ok-police-drones-private-ownership-not-much-120553042.html [as of
Jul. 2, 2015].)
Recent news articles indicate that paparazzi – photographers who follow famous
people in order to take their picture and sell them to media outlets – have begun
using drones as a tool to capture images and recordings in places not easily
accessed by a person. (See e.g. Carter Evans, Paparazzi Now Using Drones to
Hunt Down and Photograph Stars <http://www.cbsnews.com/news/paparazzitake-to-the-skies-to-pursue-stars-with-drones/ [as of Jul. 2, 2015].) Noncelebrities across the country have also reported situations where individuals have
used drones to observe them in what they thought were private or secluded
settings. (See Christina Sterbenz, Should We Freak Out About Drones Looking In
Our Windows? <http://www.businessinsider.com/privacy-issues-with-commercialdrones-2014-9 [as of Jul. 2, 2015].)
This bill expands existing law prohibiting the physical invasion of another’s
privacy to include knowingly entering into the airspace above another’s land
without permission in order to capture private images or recordings, including
through the use of an unmanned aerial vehicle or drone.
Comments
The author writes:
Last session Assemblyman Chau introduced AB 2306, which expanded the
definition of “constructive trespass” under the anti-paparazzi statute to include
“any device” to project oneself onto the property of, or into the private
conversation of, a person with a reasonable expectation of privacy (including by
drone), but failed to prohibit the actual trespass onto the property when the
drones come over fences and past locked gates to spy on people in their yards,
or peer into their windows. AB 856 plugs this loophole in the law by clarifying
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that a person will be liable for physical invasion of privacy when they actually
enter onto the property of another, including the airspace immediately above
that property.
This extension of the paparazzi law is consistent with both existing privacy
policy contained in Civil Code 1708.8, The Paparazzi Privacy Act, and property
law. In US v. Causby, the United States Supreme Court was faced with the
question of whether the government's use of an airport near a chicken farmer’s
home, and a flight path immediately over his house, constituted a taking of his
property due to disruption of his sleep and production drop-off of his chickens.
In finding for the plaintiff Mr. Causby, Justice Douglas wrote, “We have said
that the airspace is a public highway. Yet it is obvious that, if the landowner is
to have full enjoyment of the land, he must have exclusive control of the
immediate reaches of the enveloping atmosphere.” US v. Causby, 328 US 256
(1946).
Related/Prior Legislation
SB 170 (Gaines, 2015) provides that a person who knowingly and intentionally
operates an unmanned aircraft on or above the grounds of a state prison or a jail is
guilty of a misdemeanor, except as specified. The bill is pending in the Assembly
Appropriations Committee.
SB 142 (Jackson, 2015) clarifies that the operation of an unmanned aerial vehicle
less than 350 feet above the property of another, without permission or legal
authority, constitutes trespass. The bill is pending on the Assembly Floor.
SB 262 (Galgiani, 2015) authorizes law enforcement agencies to use unmanned
aircraft systems provided such use complies with certain conditions, including:
search and seizure protections in the U.S. and California Constitutions; federal law
applicable to unmanned aircraft systems; and state law applicable to law
enforcement agency use of surveillance technology. The bill also requires law
enforcement agencies to receive approval from their local governing body prior to
using unmanned aircraft systems, and restricts the use of such systems for
conducting surveillance of private property. The bill is pending in the Senate
Judiciary Committee.
SB 271 (Gaines, 2015) makes it an infraction to operate an unmanned aircraft on
the grounds of, or less than 350 feet above ground level within the airspace
overlaying, a public school providing instruction in kindergarten or grades 1 to 12
during school hours and without permission of school officials. The bill exempts
specified media and news personnel unless they receive a request from school
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officials to cease using an unmanned aircraft above a school, and also exempts law
enforcement. The bill is pending in the Assembly Appropriations Committee.
AB 14 (Waldron, 2015) creates the Unmanned Aircraft Systems Task Force, which
is required to research, develop, and formulate a comprehensive policy for
unmanned aircraft systems in California. The task force is required to submit,
among other things, a policy draft and suggested legislation pertaining to
unmanned aircraft systems to the Legislature and the Governor on or before
January 1, 2018. The bill is pending reconsideration in the Assembly
Transportation Committee.
AB 56 (Quirk, 2015) prohibits law enforcement agencies from using unmanned
aircraft systems, or contracting for the use of these systems, unless the law
enforcement agency complies with specified requirements, including the
development of a policy concerning the use of the system, and complies with
certain provisions of state and federal law. The bill prohibits a law enforcement
agency from using an unmanned aircraft system to surveil private property without
a warrant, and would require images, footage, or data obtained through the use of
such a system to be permanently destroyed within one year, except as specified.
The bill is pending on the Senate Floor.
AB 1327 (Gorell, 2014) would have prohibited public agencies from using
unmanned aircraft systems, or contracting for the use of these systems, with certain
exceptions for law enforcement agencies acting pursuant to a warrant and in
certain other cases, including when the use or operation of the unmanned aircraft
system achieves the core mission of the agency and the purpose of use is unrelated
to the gathering of criminal intelligence. The bill would have also required notice
by public agencies intending to deploy unmanned aircraft, would have required
images, footage, or data obtained through the use of such aircraft to be
permanently destroyed within one year except as specified, and would have
prohibited equipping unmanned aircraft with weapons. The bill was vetoed by
Governor Brown.
SB 15 (Padilla, 2013) would have, among other things, required law enforcement
agencies to obtain search warrants when using unmanned aircraft, and would have
required that an application for the search warrant specify the intended purpose for
which the unmanned aircraft would be used. The bill would have also restricted
data collection by unmanned aircraft and would have prohibited equipping
unmanned aircraft with weapons. The bill died in the Assembly Public Safety
Committee.
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AB 1524 (Waldron, 2013) would have required any entity that owns or operates an
unmanned aircraft to place identifying information or digitally store identifying
information on the aircraft. The bill would have exempted model aircraft, and
would have made a person or entity that violates its provisions liable for a civil fine
not to exceed $2,500. The bill was set for hearing in the Assembly Transportation
Committee, but the hearing was cancelled at the author’s request.
FISCAL EFFECT: Appropriation: No
Fiscal Com.:
No
Local: No
SUPPORT: (Verified 8/10/15)
California College and University Police Chiefs Association
Paparazzi Reform Initiative
OPPOSITION: (Verified 8/10/15)
None received
ASSEMBLY FLOOR: 78-0, 5/14/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta,
Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu,
Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines,
Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Lopez, Low, Maienschein, Mathis, Mayes,
McCarty, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson,
Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth,
Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,
Wood, Atkins
NO VOTE RECORDED: Linder, Medina
Prepared by: Tobias Halvarson / JUD. / (916) 651-4113
8/13/15 13:13:47
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