BILL ANALYSIS Ó
SB 142
Page 1
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
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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 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
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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
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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.
1)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.
2)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.
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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
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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
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higher than 100 feet above the 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
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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
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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, 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
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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
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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
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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.
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
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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.
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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 "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
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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
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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."
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
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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
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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.
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
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Concern
TechNet
Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334