Existing federal law, the FAA Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

Existing law deems the detriment caused by wrongful occupation of real property to be the value of the use of the property for the time of the wrongful occupation, the reasonable cost of repair or restoration of the property, and the costs of recovering the possession.

This bill would extend liability for wrongful occupation of real property and damages to a person who operates an unmanned aircraft or unmanned aircraft system, as defined, less than 350 feet above ground level within the airspace overlaying the real property, without the express permission of the person or entity with the legal authority to grant access or without legal authority.

Existing federal law, the FAA Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

Existing law deems the detriment caused by wrongful occupation of real property to be the value of the use of the property for the time of the wrongful occupation, the reasonable cost of repair or restoration of the property, and the costs of recovering the possession.

This bill would extend liability for wrongful occupation of real property and damages to a person who operates an unmanned aerial vehicle below the navigable airspace overlaying the real property or operation of an unmanned aerial vehicle aircraft or unmanned aircraft system, as defined, less than 350 feet above ground level within the airspace overlaying the real property, without the consent of the landowner express permission of the person or entity with the legal authority to grant access or without legal authority.

Existing federal law, the FAA Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

Existing law imposes liability for physical invasion of privacy, if a person knowingly enters onto the land of another without permission or otherwise commits a trespass in order to capture any image or recording of the plaintiff engaging in a private activity and the invasion is offensive to a reasonable person.

This bill would define knowing entry upon the land of another also to include operation of an unmanned aerial vehicle below the navigable airspace overlaying the real property or operation of an unmanned aerial vehicle less than 350 feet above ground level within the airspace overlaying the real property. property, without the consent of the landowner or without legal authority.

Existing law deems the detriment caused by wrongful occupation of real property to be the value of the use of the property for the time of the wrongful occupation, the reasonable cost of repair or restoration of the property, and the costs of recovering the possession.

This bill would extend liability for wrongful occupation of real property and damages to a person who without permission operates an unmanned aerial vehicle below the navigable airspace overlaying the real property or operation of an unmanned aerial vehicle less than 350 feet above ground level within the airspace overlaying the real property. property, without the consent of the landowner or without legal authority.

Existing federal law, the FAA Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

Existing law imposes liability for physical invasion of privacy, if a person knowingly enters onto the land of another without permission or otherwise commits a trespass in order to capture any image or recording of the plaintiff engaging in a private activity and the invasion is offensive to a reasonable person.

This bill would define knowing entry upon the land of another also to include operation of an unmanned aerial vehicle below the navigable airspace overlaying the property. real property or operation of an unmanned aerial vehicle less than 350 feet above ground level within the airspace overlaying the real property.

Existing law deems the detriment caused by wrongful occupation of real property to be the value of the use of the property for the time of the wrongful occupation, the reasonable cost of repair or restoration of the property, and the costs of recovering the possession.

This bill would extend liability for wrongful occupation of real property and damages to a person who without permission operates an unmanned aerial vehicle below the navigable airspace overlaying the real property. property or operation of an unmanned aerial vehicle less than 350 feet above ground level within the airspace overlaying the real property.

Existing federal law, the FAA Modernization and Reform Act of 2012, provides for the integration of civil unmanned aircraft systems, commonly known as drones, into the national airspace system by September 30, 2015. Existing federal law requires the Administrator of the Federal Aviation Administration to develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system by December 31, 2015.

Existing law imposes liability for physical invasion of privacy, if a person knowingly enters onto the land of another without permission or otherwise commits a trespass in order to capture any image or recording of the plaintiff engaging in a private activity and the invasion is offensive to a reasonable person.

This bill would define knowing entry upon the land of another also to include operation of an unmanned aerial vehicle below the navigable airspace overlaying the property.

Existing law deems the detriment caused by wrongful occupation of real property to be the value of the use of the property for the time of the wrongful occupation, the reasonable cost of repair or restoration of the property, and the costs of recovering the possession.

This bill would extend liability for wrongful occupation of real property and damages to a person who without permission operates an unmanned aerial vehicle below the navigable airspace overlaying the real property.

 VETO  

Bill No: SB 142

Author: Jackson (D), et al.

Amended: 6/30/15

Vote: 21

SENATE JUDICIARY COMMITTEE: 5-1, 4/7/15

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Anderson

NO VOTE RECORDED: Vidak

SENATE FLOOR: 24-9, 5/4/15

AYES: Allen, Bates, Beall, Block, De León, Gaines, Hall, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Nguyen, Pan, Roth, Wieckowski

NOES: Anderson, Fuller, Huff, Moorlach, Morrell, Nielsen, Runner, Stone, Vidak

NO VOTE RECORDED: Berryhill, Cannella, Galgiani, Hancock, Pavley, Wolk

SENATE FLOOR: 21-12, 8/27/15

AYES: Allen, Beall, De León, Gaines, Hancock, Hertzberg, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk

NOES: Anderson, Berryhill, Cannella, Fuller, Galgiani, Glazer, Hill, Huff, Morrell, Runner, Stone, Vidak

NO VOTE RECORDED: Bates, Block, Hall, Hernandez, Moorlach, Nguyen, Nielsen

ASSEMBLY FLOOR: 56-13, 8/24/15 - See last page for vote

SUBJECT: Civil law: unmanned aerial vehicles

SOURCE: Author

DIGEST: This bill states that the operation of an unmanned aerial vehicle less than 350 feet above the ground in the airspace overlying the property of another without permission or legal authority constitutes trespass. This bill specifies that it does not impair or limit existing rights of law enforcement personnel, employees of governmental agencies, or other public or private entities to enter land by operating an unmanned aerial vehicle within the airspace overlaying the real property of another.

ANALYSIS:

Existing law:

1. Provides 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. Provides, for the breach of an obligation not arising from contract (including trespass), the measure of damages, except where otherwise expressly provided, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. (Civ. Code Sec. 3333.)

3. Provides that 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, the reasonable cost of repair or restoration of the property to its original condition, and the costs, if any, of recovering the possession. (Civ. Code Sec. 3334.)

This bill:

1. Provides that a person wrongfully occupies real property and is liable for damages if, without express permission of the person or entity 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. Specifies that 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, as specified.

3. Specifies 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.

4. Specifies that unmanned aerial vehicles are not “aircraft” for the purposes of the State Aeronautics Act. (Pub. Util. Code Sec. 21001, et seq.)

5. Defines the following terms:

• “Unmanned aircraft” means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.

• “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.

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 (Act). 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 Act’s safety rules include a requirement to operate these recreational aircraft in accordance with community-based safety guidelines, but the lack of more comprehensive rules establishing clear boundaries for when, where, and how these craft may 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 October 26, 2015].) Even though drone technology is in its infancy, there have already been disputes between landowners who have used these machines to traverse traditional boundaries, including a New Jersey man who shot an aerial drone from the sky when it entered his land. (See Steve Beck, New Jersey Man Accused of Shooting Down Neighbor’s Remote Control Drone <http://philadelphia.cbslocal.com /2014/09/30/new-jersey-man-accused-of-shooting-down-neighbors-remote-control-drone/ [as of October 26, 2015].)

This bill provides that operation of an unmanned aerial vehicle less than 350 feet over the property of another without permission constitutes trespass, unless the operator of the unmanned aerial vehicle has lawful authority to enter onto the property without the owner’s consent.

Comments

The author writes:

Existing law protects the privacy of California residents in their homes both by prohibiting others from entering onto private land without permission, and by prohibiting attempts to capture images or recordings of individuals engaged in personal or familial activities in situations where they have a reasonable expectation of privacy. This bill clarifies how long-standing principles of trespass and privacy apply to unmanned aircraft, also known as drones.

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 explicitly provides that operating an unmanned aerial vehicle without permission less than 350 feet over the property of another constitutes trespass. Just as trespass occurs when one directs a remote controlled vehicle onto another’s property, this bill clarifies that flying a drone in close proximity to another’s land without permission constitutes unauthorized entry.

The development of drone technology has challenged the way we think about trespass and invasion of privacy. No longer is trespass limited to activities occurring at ground level. Drones can effortlessly fly over fences and other structures meant to exclude others, allowing individuals via their aerial vehicles to invade areas of the home traditionally protected from outside eyes and ears.

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. By extending the long-established concepts of trespass and privacy to include drone operations, this bill brings these concepts into the 21st century.

Related/Prior Legislation

SB 168 (Gaines and Jackson, 2015) provides specified emergency responders with immunity from civil liability for any damage to an unmanned aircraft system, if the damage was caused while the emergency responder was providing, and the unmanned aircraft system was interfering with, the operation, support, or enabling of specified emergency services. This bill also makes it unlawful to knowingly, intentionally, or recklessly operate an unmanned aircraft or unmanned aircraft system in a manner that prevents or delays the extinguishment of a fire, or in any way that interferes with the efforts of firefighters to control, contain, or extinguish a fire, as specified. The bill was vetoed by Governor Brown.

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 was vetoed by Governor Brown.

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 officials to cease using an unmanned aircraft above a school, and also exempts law enforcement personnel. The bill was vetoed by Governor Brown.

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. The bill prohibits a law enforcement agency from using an unmanned aircraft system to surveil private property without a warrant, and requires 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 inactive file.

AB 856 (Calderon, Chapter 521, Statutes of 2015) 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.

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.

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 11/10/15)

American Chemistry Council

California Police Chiefs Association

City of Camarillo

Privacy Rights Clearinghouse

OPPOSITION: (Verified 11/10/15)

Academy of Model Aeronautics

Association for Unmanned Vehicle Systems International

California Chamber of Commerce

Consumer Electronics Association

CSAC Excess Insurance Authority

DJI Technologies

GoPro

Small UAV Coalition

TechNet

ARGUMENTS IN SUPPORT: According to the City of Camarillo, “unmanned aerial vehicle (UAV) technology is evolving rapidly and it is important that our civil laws be updated to protect our citizens’ privacy. Concurrently, it is also important that we not impede lawful activities of law enforcement personnel and employees of government agencies that may utilize UAV technology. We believe that SB 142, as amended, strikes the necessary balance.”

ARGUMENTS IN OPPOSITION: According to the California Chamber of Commerce, the 350-foot limitation proposed in SB 142 significantly restricts the available airspace for drones, and could directly interfere with many ongoing collaborative efforts between federal, state and private entities working on efficiency and safety protocols for these vehicles. Lawsuits brought under SB 142 could be successfully completed even if the violations were unintentional or incidental, and creating a 350-foot line in airspace does not protect consumer’s privacy nor prevent harassment.

GOVERNOR'S VETO MESSAGE:

I am returning Senate Bill 142 without my signature.

This bill would enact trespass liability for anyone flying a drone less than 350 feet above real property without the express permission of the property owner, whether or not anyone's privacy was violated by the flight.

Drone technology certainly raises novel issues that merit careful examination. This bill, however, while well-intentioned, could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action.

Before we go down that path, let's look at this more carefully.

ASSEMBLY FLOOR: 56-13, 8/24/15

AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Brough, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Dodd, Eggman, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gomez, Gonzalez, Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Lopez, Low, Maienschein, Mayes, McCarty, Melendez, Nazarian, O'Donnell, Patterson, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Weber, Wilk, Williams, Wood, Atkins

NOES: Travis Allen, Chávez, Gipson, Grove, Hadley, Jones, Mathis, Medina, Mullin, Obernolte, Perea, Ting, Wagner

NO VOTE RECORDED: Bigelow, Bonta, Chang, Daly, Frazier, Gordon, Gray, Linder, Olsen, Quirk, Waldron

Prepared by: Tobias Halvarson / JUD. / (916) 651-4113

11/13/15 16:03:42

**** END ****

 UNFINISHED BUSINESS  

Bill No: SB 142

Author: Jackson (D), et al.

Amended: 6/30/15

Vote: 21

SENATE JUDICIARY COMMITTEE: 5-1, 4/7/15

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Anderson

NO VOTE RECORDED: Vidak

SENATE FLOOR: 24-9, 5/4/15

AYES: Allen, Bates, Beall, Block, De León, Gaines, Hall, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Nguyen, Pan, Roth, Wieckowski

NOES: Anderson, Fuller, Huff, Moorlach, Morrell, Nielsen, Runner, Stone, Vidak

NO VOTE RECORDED: Berryhill, Cannella, Galgiani, Hancock, Pavley, Wolk

ASSEMBLY FLOOR: 56-13, 8/24/15 - See last page for vote

SUBJECT: Civil law: unmanned aerial vehicles

SOURCE: Author

DIGEST: This bill states that the operation of an unmanned aerial vehicle less than 350 feet above ground in the airspace overlying the property of another, without permission or legal authority, constitutes trespass. This bill specifies that it does not impair or limit existing rights of law enforcement personnel, employees of governmental agencies, or other public or private entities to enter land by operating an unmanned aerial vehicle within the airspace overlaying the real property of another.

Assembly Amendments remove “navigable airspace” as a criterion for determining trespass, remove provisions relating to physical invasion of privacy, define “unmanned aircraft” and “unmanned aircraft system,” specify exemptions and limitations to trespass, and make other clarifying changes.

ANALYSIS:

Existing law:

1. Provides 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. Provides, for the breach of an obligation not arising from contract (including trespass), the measure of damages, except where otherwise expressly provided, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. (Civ. Code Sec. 3333.)

3. Provides that 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, the reasonable cost of repair or restoration of the property to its original condition, and the costs, if any, of recovering the possession. (Civ. Code Sec. 3334.)

This bill:

1. Provides that a person wrongfully occupies real property and is liable for damages if, without express permission of the person or entity 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. Specifies that this 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, as specified.

3. Specifies that this 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.

4. Specifies that unmanned aerial vehicles are not “aircraft” for the purposes of the State Aeronautics Act. (Pub. Util. Code Sec. 21001, et seq.)

5. Defines the following terms:

• “Unmanned aircraft” means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.

• “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.

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 (Act). 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 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 March 31, 2015].) Even though drone technology is in its infancy, there have already been disputes between landowners who have used these machines to traverse traditional boundaries, including a New Jersey man who shot an aerial drone from the sky when it entered his land. (See Steve Beck, New Jersey Man Accused of Shooting Down Neighbor’s Remote Control Drone <http://philadelphia.cbslocal.com /2014/09/30/new-jersey-man-accused-of-shooting-down-neighbors-remote-control-drone [as of March 31, 2015].)

This bill provides that operation of an unmanned aerial vehicle less than 350 feet over the property of another without permission constitutes trespass, unless the operator of the unmanned aerial vehicle has lawful authority to enter onto the property without the owner’s consent.

Comments

The author writes:

Existing law protects the privacy of California residents in their homes both by prohibiting others from entering onto private land without permission, and by prohibiting attempts to capture images or recordings of individuals engaged in personal or familial activities in situations where they have a reasonable expectation of privacy. This bill clarifies how long-standing principles of trespass and privacy apply to unmanned aircraft, also known as drones.

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 explicitly provides that operating an unmanned aerial vehicle without permission less than 350 feet over the property of another constitutes trespass. Just as trespass occurs when one directs a remote controlled vehicle onto another’s property, this bill clarifies that flying a drone in close proximity to another’s land without permission constitutes unauthorized entry.

The development of drone technology has challenged the way we think about trespass and invasion of privacy. No longer is trespass limited to activities occurring at ground level. Drones can effortlessly fly over fences and other structures meant to exclude others, allowing individuals via their aerial vehicles to invade areas of the home traditionally protected from outside eyes and ears.

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. By extending the long-established concepts of trespass and privacy to include drone operations, this bill brings these concepts into the 21st century.

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 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 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 in the Senate Appropriations Committee.

AB 856 (Calderon, 2015) 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. The bill is pending on the Assembly 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.

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 died in the Assembly Transportation Committee.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 8/26/15)

American Chemistry Council

California Police Chiefs Association

City of Camarillo

Privacy Rights Clearinghouse

OPPOSITION: (Verified 8/26/15)

Academy of Model Aeronautics

Association for Unmanned Vehicle Systems International

California Chamber of Commerce

Consumer Electronics Association

CSAC Excess Insurance Authority

DJI Technologies

GoPro

Small UAV Coalition

TechNet

ARGUMENTS IN SUPPORT: According to the City of Camarillo, “unmanned aerial vehicle (UAV) technology is evolving rapidly and it is important that our civil laws be updated to protect our citizens’ privacy. Concurrently, it is also important that we not impede lawful activities of law enforcement personnel and employees of government agencies that may utilize UAV technology. We believe that SB 142, as amended, strikes the necessary balance.”

ARGUMENTS IN OPPOSITION: According to the California Chamber of Commerce, the 350-foot limitation proposed in SB 142 significantly restricts the available airspace for drones, and could directly interfere with many ongoing collaborative efforts between federal, state and private entities working on efficiency and safety protocols for these vehicles. Lawsuits brought under SB 142 could be successfully completed even if the violations were unintentional or incidental, and creating a 350-foot line in airspace does not protect consumer’s privacy nor prevent harassment.

ASSEMBLY FLOOR: 56-13, 8/24/15

AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Brough, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Dodd, Eggman, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gomez, Gonzalez, Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Lopez, Low, Maienschein, Mayes, McCarty, Melendez, Nazarian, O'Donnell, Patterson, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Weber, Wilk, Williams, Wood, Atkins

NOES: Travis Allen, Chávez, Gipson, Grove, Hadley, Jones, Mathis, Medina, Mullin, Obernolte, Perea, Ting, Wagner

NO VOTE RECORDED: Bigelow, Bonta, Chang, Daly, Frazier, Gordon, Gray, Linder, Olsen, Quirk, Waldron

Prepared by: Tobias Halvarson / JUD. / (916) 651-4113

8/26/15 16:13:28

**** END ****

SENATE THIRD READING

STR Bill Id:SB 142

Author:(Jackson)

As Amended Ver:June 30, 2015

Majority vote

SENATE VOTE: 24-9

SUMMARY: Creates property rights in the airspace up to 350 feet above private property with regard to the use of an unmanned aircraft system (UAS). Specifically, this bill:

1. Creates a trespass violation for operating an unmanned aircraft or UAS less than 350 feet above ground over private property without consent or legal authority.

2. Clarifies that this bill does not impair or limit otherwise lawful activities of law enforcement personnel, employees of government agencies, or other public or private entities having a right of entry onto the private property.

3. Clarifies that the Public Utilities Code definition of "aircraft" does not include UAS.

4. Clarifies that nothing in these provisions is intended to limit the rights and defenses related to a trespass claim available at common law.

5. Defines the terms "unmanned aircraft" and "unmanned aircraft system".

EXISTING LAW:

1. Establishes that ownership of real property (land or water) includes ownership of the airspace above the property, subject to the right of flight as permitted by federal authority. (Public Utilities Code (PUC) Section 21402)

2. Specifies that flight by aircraft is lawful, unless at altitudes below those prescribed by federal authority. (PUC Section 21403)

3. Defines "aircraft" to mean any manned contrivance used or designed for navigation of, or flight in, the air requiring certification and registration as prescribed by federal statute or regulation. (PUC Section 21012)

4. Establishes damages for certain trespass claims, i.e., wrongful occupation of real property claims, as follows:

   1. The value of using the property, where the "value" is the greater of the reasonable rental value or the benefits obtained by the wrongful occupation;

   2. The reasonable cost of repair or restoration of the property to its original condition; and

   3. The costs, if any, of recovering possession. (Civil Code Section 3334)

FISCAL EFFECT: None. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: In 2012, Congress required the Federal Aviation Administration (FAA) to establish a framework of regulations for safely integrating UAS into the national airspace. The FAA is still in the process of developing those regulations, and it is unclear whether the FAA will regulate UAS at heights below 500 feet.

In the meantime, incidents of UAS hovering outside windows and over backyards have proliferated as UAS devices have become more affordable to hobbyists. In a 2014 survey by Pew Research Center and Smithsonian magazine, 63% of respondents said it would be a change for the worse "if personal and commercial drones are given permission to fly through most U.S. airspace." Privacy concerns were a frequent sentiment expressed by respondents.

Commercial applications for UAS are also growing exponentially. UAS gives the news media economical and environmentally friendly access to aerial views of traffic, storms, and other events when compared to the current use of helicopters and other manned aircraft. The agricultural industry uses UAS to observe and measure crops while conserving resources and avoiding the use of heavy equipment. And UAS may become the future delivery system for mail order and Internet companies, such as Amazon.

This bill establishes a property right in the airspace up to 350 feet directly above private property, so that UAS cannot be flown lower than 350 feet over private land, homes, or buildings without permission of the property owner or tenant. The author contends that 350 feet is a reasonable demarcation given that people should have a right to a UAS-free zone over their property, balanced with the need for a UAS transit zone below 500 feet, above which is generally reserved for manned flight under FAA regulations.

This bill also clarifies that law enforcement has the authority to use UAS over private property at any height, as provided by law.

Analysis Prepared by: Jennie Bretschneider / P. & C.P. / (916) 319-2200 FN: 0001249

Date of Hearing: July 14, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:SB 142

Author:(Jackson) – As Amended Ver: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 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:

1. “Unmanned aircraft” means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.

2. “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.

3. “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).)

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).

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 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, 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.

(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.

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 “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.”

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 (Author: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.

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

Date of Hearing: July 7, 2015

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Mike Gatto, Chair

SBPCA Bill Id:SB 142

Author:(Jackson) – As Amended Ver:June 30, 2015

SENATE VOTE: 24-9

SUBJECT: Civil law: unmanned aerial vehicles.

SUMMARY: Creates property rights in the airspace up to 350 feet above private property with regard to the use of an unmanned aircraft system (UAS). Specifically, this bill:

1. Creates a trespass violation for operating an unmanned aircraft or UAS less than 350 feet above ground over private property without consent or legal authority.

2. Clarifies that the bill does not impair or limit otherwise lawful activities of law enforcement personnel, employees of government agencies, or other public or private entities having a right of entry onto the private property.

3. Clarifies that the bill is not intended to limit the rights and defenses available at common law under a trespass claim.
   
   

4. Defines “unmanned aircraft” and “unmanned aircraft system” consistent with Federal Aviation Administration (FAA) regulation.
   
   

5. Clarifies that the Public Utilities Code definition of “aircraft” does not include UAS.

EXISTING LAW:

1. Requires, under the FAA Modernization and Reform Act of 2012, the FAA to integrate UAS into the national airspace system by September 30, 2015, and to develop and implement certification requirements for the operation of UAS in the national airspace system by December 31, 2015. (Public Law Number 112-095)

2. Establishes that ownership of real property (land or water) includes ownership of the airspace above the property, subject to the right of flight as permitted by federal authority. (Public Utilities (PU) Code Section 21402)

3. Specifies that flight by aircraft is lawful, unless at altitudes below those prescribed by federal authority. (PU 21403)

4. Defines “aircraft” to mean any manned contrivance used or designed for navigation of, or flight in, the air requiring certification and registration as prescribed by federal statute or regulation.” (PU 21012)

5. Establishes damages for certain trespass claims, i.e., wrongful occupation of real property claims, as follows:
   
   
   

   1. The value of using the property, where the “value” is the greater of the reasonable rental value or the benefits obtained by the wrongful occupation;
      

   2. The reasonable cost of repair or restoration of the property to its original condition; and
      
      
      

   3. The costs, if any, of recovering possession. (Civil Code (CC) Section 3334)

6. Defines “physical invasion of privacy” as the knowing entry on the land of another without permission, or otherwise committed a trespass, in order to capture an image, sound recording or other impression in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person. (CC 1708.8)

7. Defines “constructive invasion of privacy” in terms of attempting to capture, in a manner highly offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there was a physical trespass, if the image or recording could not have been achieved without a trespass unless the visual or auditory enhancing device was used. (CC 1708.8 (b))

FISCAL EFFECT: None. This bill has been keyed nonfiscal by the Legislative Counsel.

COMMENTS:

1. Purpose of this bill. This bill seeks to protect personal privacy by restricting the use of UAS over private property up to a height of 350 feet, unless the operator has permission from the property owner or some other legal authority. This bill is author-sponsored.

2. Author’s statement. According to the author, “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.
   
   “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.”

3. The many uses of UAS. The FAA defines a UAS as an unmanned aircraft system and all of the associated support equipment, control stations, data links, telemetry, and communications and navigation equipment necessary to operate the unmanned aircraft. A UAS is flown either by a pilot via a ground control system or autonomously through use of an on-board computer. UAS are widely available to the public. Retail UAS devices outfitted with cameras now range from roughly $300 to $1,500.

Commercial applications for UAS are growing exponentially. UAS gives the news media economical and environmentally-friendly access to aerial views of traffic, storms, and other events when compared to the current use of helicopters and other manned aircraft. UAS is used in the agricultural industry to observe and measure crops while conserving resources and avoiding the use of heavy equipment. And UAS may be the future delivery system for mail order and Internet companies. In fact, Amazon, the largest Internet-based retailer in the United States, plans to seek FAA approval for “PrimeAir” – a new delivery system that uses small UAS to deliver packages instead of using mail trucks. According to the Amazon.com website, the company has UAS delivery development and testing centers in the United States, the United Kingdom and Israel, but has no immediate plans for roll out.

4. FAA regulation of UAS. In 2012, Congress passed the FAA Modernization and Reform Act of 2012 (Act). The Act required the FAA to establish a framework for safely integrating UAS into the national airspace no later than September 30, 2015, and authorized the FAA to establish interim requirements for the commercial operation of UAS. Under the interim rules, UAS operators must meet certain standards and apply for a commercial use exemption and an FAA Certificate of Authorization (COA) in order to operate in in “navigable airspace,” which is generally above 500 feet.
   
   According to the author’s office, the FAA has granted COAs to operate UAS in navigable airspace to film production companies, construction firms, surveying and inspection companies, real estate marketing companies, and businesses from other industries. Federal, state and local government agencies, law enforcement, and public colleges and universities can also receive a COA from the FAA authorizing specific uses of UAS for specific time periods. Under a 1981 FAA advisory circular (AC 91-57), the FAA authorized the use of "small" UAS (under 55 pounds) for recreational purposes without a COA as long as the UAS 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 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 UAS. The FAA has suggested that it may create a less strict regulatory framework for “micro” UAS (under 4.4 pounds).

While the proposed FAA rules could potentially permit UAS uses from zero to 500 feet and may ultimately preempt state law, this bill would establish a property right in the airspace up to 350 feet directly above private property, so that UAS 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 UAS could travel over private property from one place to another without entering FAA-regulated national airspace.

5. Where should private property rights end? California law gives property owners the rights to the airspaces above their land, subject to FAA rules for manned flights, i.e., airplanes, helicopters, and other aircraft with pilots on board.

The Supreme Court has previously held that landowner rights to the airspace over property are limited. In United States v. Causby, the Court concluded in 1946 that the ancient common law doctrine “cuius est solum, eius est usqu ad coelom” (whoever owns the soil, it is theirs up to heaven and down to hell) had no place in the modern world. The Court rejected the unlimited reach above and below the earth established in the common law, but did not define a specific limit. Instead, the Court held 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."

Looking at the facts in Causby, the Court found that frequent military aircraft flights 83 feet above a chicken farm, which caused several of the chickens to die, violated the farmer’s property rights under the takings clause of the Fifth Amendment of the U.S. Constitution. The Fifth Amendment itself states that “private property [shall not] be taken for public use, without just compensation.” United States v. Causby, 328 U.S. 256 (1946).

This bill establishes a specific statutory property right as to UAS use in the airspace above private property by making it a trespass violation to operate a UAS in the airspace over private property below 350 feet without permission. The author contends that 350 feet is a reasonable demarcation given that people should have a right to a UAS-free zone over their property, balanced with the need for a UAS transit zone below 500 feet, above which is generally reserved for manned flight under FAA regulations. This bill clarifies that law enforcement has the authority to use UAS over private property at any height, as provided by law.

6. The federal preemption issue. Once the FAA has finished promulgating regulations governing the use of UAS, a future court may find that those regulations preempt certain state laws – such as this one, if passed - but this remains uncertain. In fact, the Ninth Circuit has taken a somewhat narrow view of FAA preemption in recent decisions.

In Montalvo v. Spirit Airlines, the Ninth Circuit held that federal law preempts state law aviation safety standards in areas in which the FAA has issued “pervasive regulations.” In discussing the Montalvo case, the Ninth Circuit found that the specific FAA regulations relevant in the case were “pervasive” in that they were “specific,” detail[ed],” “complete,” “thorough” and “comprehensive” and that this pervasiveness evidenced Congressional intent to broadly preempt state law. Montalvo v. Spirit Airlines, 508 F.3d 464, 473 (9^th Cir. 2007)

Two years later, in Martin ex rel. Heckman v. Midwest Express Holdings, Inc., the Ninth Circuit further limited the scope of FAA preemption and held that state law was only preempted if the specific area covered by the plaintiff’s tort claim was the subject of pervasive federal regulations. Martin ex rel. Heckman v. Midwest Express Holdings, Inc. 555 F.3d 806, 811 (9^th Cir. 2009) (Source: “The Ninth Circuit’s “Nuanced” Approach to FAA Preemption Leads to Greater Uncertainty and Invites Artful Pleading,” Morrison Foerster Client Alert March 18, 2013)

Nevertheless, while the issue of whether or not the final FAA regulations governing UAS will be sufficiently “pervasive” as to preempt state law remains unanswered, the immediate question is simple: should state law give homeowners and landowners the right to stop a UAS from flying over their property at heights lower than 350 feet?

7. Privacy and safety concerns. In a recent national survey conducted by Pew Research Center and the Smithsonian magazine, 63% of respondents said it would be a change for the worse “if personal and commercial drones are given permission to fly through most U.S. airspace.” Privacy concerns were a frequent sentiment expressed by respondents. (“U.S. Views of Technology and the Future,” Pew Research Center, April 17, 2014)

News stories on UAS hovering outside windows and over backyards have proliferated as UAS devices have become more affordable to hobbyists. A recent NPR story told of a San Francisco resident whose wife was sitting in the living room and saw a UAS with a camera hovering outside the window. “She started hiding behind furniture because something's looking in at you ... and you're very self-conscious about that all of a sudden," said the resident. "I found myself doing the same thing. You're hiding behind your own furniture in your own house where you just had privacy prior.” (“As Drones Fly In Cities and Yards, So Do the Complaints,” NPR, May 12, 2014)

The Los Angeles Times recently reported that two unidentified drones interfered with firefighter efforts to drop water and flame retardant on fires burning near residential areas in Southern California, leading to a delay in containing the fires. (“Lake Fire in San Bernardino National Forest Grows To Nearly 30,000 Acres,” Los Angeles Times, June 26, 2015) Until a more comprehensive regulatory system is put in place, beginning with final FAA regulations, it is likely that growing recreational and hobbyist use will lead to more such incidents.

8. Prior actions by this Committee. AB 856 (Calderon), which passed this Committee 11-0 on May 5, 2015, permits a claim for physical invasion of privacy for intrusion into the airspace above private property. AB 856 does not define an upper boundary for the airspace protected, but a claim for physical invasion of privacy can only be pursued when a UAS is used to capture a visual image, sound recording, or other physical impression of that person engaging in a personal or familial activity.

AB 56 (Quirk), which passed this Committee on a 6-0 vote on April 14, 2015, is consistent with this bill, because it permits the use of UAS over private property if the operator has permission or legal authority.

In addition to this bill, this Committee will hear two other UAS bills on July 7, 2015: SB 170 (Gaines), which bans flying UAS over prisons and jails at any height for security reasons, and SB 271 (Gaines), which limits the use of UAS over schools below 350 feet.

9. Arguments in support. The Privacy Rights Clearinghouse states, “The emergence of drone technology has created many new opportunities for Californians’ privacy to be invaded in ways that could not be imagined several years ago. No longer is trespass limited to activities occurring at ground level. Drones operating under the command of others can effortlessly fly over fences and other structures meant to exclude others, allowing individuals to invade areas of the home traditionally protected from prying eyes. This bill extends liability for wrongful occupation of real property and damages to a person who without permission operates an [UAS] below the navigable airspace (lower than 350 feet) overlaying the real property.”

The California Police Chiefs Association writes, “We share your goal of extending liability for wrongful occupation of real property and damages to a person who without permission operates a [UAS] below the navigable airspace (lower than 350 feet) overlaying real property…[UAS] 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 [UAS] technology. We believe that your SB 142, as amended, strikes the necessary balance.”

10. Arguments in opposition. According to the California State Association of Counties(CSAC) Excess Insurance Authority, which provides insurance to California counties, “public entities are exposed to numerous forms of litigation on an annual basis. Such cases can take years to resolve and result in the expenditure of significant sums of public funds that could otherwise be used in the community. SB 142 creates yet another avenue of potential liability. Presently, SB 142 offers no immunity for public entities for the use of [UAS]. Thus, if this bill is passed, anytime a public entity operates an [UAS], it will be subject to one or more claims for damages from persons who own the real property over which the [UAS] is flying.”
    
    
    

11. Related legislation. AB 14 (Waldron) creates the Unmanned Aircraft Systems Task Force, comprised of 10 members. AB 14 failed passage in the Assembly Transportation Committee on a 5-9 vote.

AB 56 (Quirk) regulates the use of UAS by public agencies, including law enforcement. AB 56 passed the Assembly on a 61-12 vote and will be heard in the Senate Public Safety Committee on July 7, 2015.

AB 856 (Calderon) expands the scope of the cause of action in existing law for physical invasion of privacy by making a person liable for physical invasion of privacy when the person knowingly enters “into the airspace” above the land of another person without permission. AB 856 passed the Assembly on a 78-0 vote and is currently pending in the Senate Judiciary Committee.

SB 170 (Gaines) creates a felony crime for the use of a UAS to deliver contraband into a prison or county jail and creates a misdemeanor crime for the use of UAS over a prison or capture images of a prison. SB 170 passed the Senate on a 40-0 vote and will be heard in the Assembly Privacy and Consumer Protection Committee on July 7, 2015.

SB 262 (Galgiani) authorizes a law enforcement agency to use a UAS if it complies with the U.S. Constitution and the California Constitution, federal law applicable to the use of UAS by a law enforcement agency, state law applicable to a law enforcement agency’s use of surveillance technology that can be attached to a UAS, and if the local governing board approves the use. SB 262 was held in the Senate Judiciary Committee.

SB 271 (Gaines) prohibits the use of UAS at or less than 350 feet above a public school campus or to use a UAS to capture images of school campus during school hours without the written permission of the school principal. SB 271 passed the Senate on a 37-0 vote and will be heard in the Assembly Privacy and Consumer Protection Committee on July 7, 2015.

12. Prior legislation. AB 1256 (Author:Bloom), Chapter 852, Statutes of 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), Chapter 858, Statutes of 2014, expanded a person’s potential liability for constructive invasion of privacy, by removing the limitation that the person use a visual or auditory enhancing device, and instead made the person liable when using any device to engage in the specified unlawful activity.

SB 606 (De León), Chapter 348, Statutes of 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) of 2013 would have imposed a search warrant requirement on law enforcement agency use of a UAS in certain circumstances, would have applied existing civil and criminal law to prohibited activities with devices or instrumentalities affixed to, or contained within a UAS, and would have prohibited equipping a UAS with a weapon, and would have prohibited using a UAS to invade a person's privacy. SB 15 failed passage in the Assembly Public Safety Committee.

AB 524 (Bass), Chapter 499, Statutes of 2009, amended the "invasion of privacy" statute 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.

13. Double-referral. This bill was double-referred to the Assembly Judiciary Committee, where it will be heard if it passes this Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California Police Chiefs Association

Privacy Rights Clearinghouse

Opposition

CSAC Excess Insurance Authority

Analysis Prepared by: Jennie Bretschneider / P. & C.P. / (916) 319-2200

 THIRD READING  

Bill No: SB 142

Author: Jackson (D)

Amended: 4/14/15

Vote: 21

SENATE JUDICIARY COMMITTEE: 5-1, 4/7/15

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Anderson

NO VOTE RECORDED: Vidak

SUBJECT: Civil law: unmanned aerial vehicles

SOURCE: Author

DIGEST: This bill states that the operation of an unmanned aerial vehicle either below the navigable airspace overlying the property of another, or less than 350 feet above ground in the airspace overlying the property of another, without permission constitutes trespass, and that using such a vehicle in trespass to capture images or recordings of individuals engaged in personal or familial activities constitutes physical invasion of privacy.

ANALYSIS: Existing 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.

Existing state law:

1. Provides 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.

2. Provides, for the breach of an obligation not arising from contract (including trespass), the measure of damages, except where otherwise expressly provided, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.

3. Provides that 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, the reasonable cost of repair or restoration of the property to its original condition, and the costs, if any, of recovering the possession.

4. Provides that a person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another person without permission or otherwise committed a trespass 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.

This bill:

1. States that a person knowingly enters onto the land of another person pursuant to subdivision (a) of Section 1708.8 of the Civil Code if he or she does either of the following:

• operates an unmanned aerial vehicle below the navigable airspace, as defined in paragraph (32) of subsection (a) of Section 40102 of Title 49 of the United States Code, overlaying the real property; or

• operates an unmanned aerial vehicle less than 350 feet above ground level within the airspace overlaying the real property.

2. States that a person wrongfully occupies real property and is liable for damages pursuant to Section 3334 of the Civil Code if, without permission, he or she does either of the following:

• operates an unmanned aerial vehicle below the navigable airspace, as defined in paragraph (32) of subsection (a) of Section 40102 of Title 49 of the United States Code, overlaying the real property; or

• operates an unmanned aerial vehicle less than 350 feet above ground level within the airspace overlaying the real property.

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 (Act). 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 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 March 31, 2015].) Even though drone technology is in its infancy, there have already been disputes between landowners who have used these machines to traverse traditional boundaries, including a New Jersey man who shot an aerial drone from the sky when it entered his land. (See Steve Beck, New Jersey Man Accused of Shooting Down Neighbor’s Remote Control Drone <http://philadelphia.cbslocal.com /2014/09/30/new-jersey-man-accused-of-shooting-down-neighbors-remote-control-drone [as of March 31, 2015].)

This bill provides that operation of an unmanned aerial vehicle less than 350 feet over the property of another without permission constitutes trespass, and that using such a vehicle in trespass to capture images or recordings may be a physical invasion of privacy.

Comments

The author writes:

Existing law protects the privacy of California residents in their homes both by prohibiting others from entering onto private land without permission, and by prohibiting attempts to capture images or recordings of individuals engaged in personal or familial activities in situations where they have a reasonable expectation of privacy. This bill clarifies how long-standing principles of trespass and privacy apply to unmanned aircraft, also known as drones.

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 clarifies and reinforces California’s existing law on trespass and physical invasion of privacy in two important ways.

First, this bill explicitly provides that operating an unmanned aerial vehicle without permission below the federal “navigable airspace” overlaying the property of another, or less than 350 feet over the property of another, constitutes trespass. Just as trespass occurs when one directs a remote controlled vehicle onto another’s property, this bill clarifies that flying a drone in close proximity to another’s land without permission constitutes unauthorized entry.

Second, this bill clarifies that committing trespass in order to physically invade the property of another with the intent of recording their private personal or familial activities includes physical entry by a drone. Just as taking unauthorized pictures of an individual inside their home while standing in their backyard violates their right to privacy, this bill clarifies that directing a drone to do the same thing without permission constitutes physical invasion of privacy.

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. By extending the long-established concepts of trespass and privacy to include drone operations, this bill brings these concepts into the 21st century.

Related/Prior Legislation

SB 170 (Gaines, 2015) provides that a person who knowingly and intentionally operates an unmanned aircraft system below “navigable airspace,” as defined in federal law, overlaying a state prison is guilty of a misdemeanor, and also provides, with certain exceptions, that a person who knowingly and intentionally captures images or data of a state prison through the operation of an unmanned aircraft is guilty of a misdemeanor. The bill is pending in the Senate Appropriations Committee.

SB 262 (Galgiani, 2015) authorizes law enforcement agencies to use unmanned aircraft if the use of such aircraft complies with protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution, federal law applicable to the use of an unmanned aircraft system by a law enforcement agency, and state law applicable to a law enforcement agency’s use of surveillance technology that can be attached to an unmanned aircraft system. The bill is pending in the Senate Judiciary Committee.

SB 271 (Gaines, 2015) makes it an infraction to operate an unmanned aircraft on or above the grounds of a public school providing instruction in kindergarten or grades 1 to 12. Violators will face a fine of no more than $150 for the first violation, and a fine of no more than $500 for each subsequent violation. The bill is pending in the Senate Appropriations Committee.

AB 14 (Waldron, 2015) creates the Unmanned Aircraft Systems Task Force, which will be required to research, develop, and formulate a comprehensive policy for unmanned aircraft systems in California. The task force will be 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 in the Assembly Transportation Committee.

AB 56 (Quirk, 2015) prohibits 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 for use is unrelated to the gathering of criminal intelligence. The bill also requires notice by public agencies intending to deploy unmanned aircraft, requires images, footage, or data obtained through the use of such aircraft to be permanently destroyed within one year except as specified, and prohibits equipping unmanned aircraft with weapons. The bill is pending in the Assembly Privacy and Consumer Protection Committee.

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.

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 4/15/15)

American Chemistry Council

Privacy Rights Clearinghouse

OPPOSITION: (Verified 4/15/15)

CSAC Excess Insurance Authority

ARGUMENTS IN SUPPORT: According to Privacy Rights Clearinghouse, the emergence of drone technology has created many new opportunities for Californians’ privacy to be invaded in ways that could not be imagined several years ago. No longer is trespass limited to activities occurring at ground level. Drones operating under the command of others can effortlessly fly over fences and other structures meant to exclude others, allowing individuals to invade areas of the home traditionally protected from prying eyes. This bill extends liability for wrongful occupation of real property and damages to a person who without permission operates an unmanned aerial vehicle below the navigable airspace (lower than 350 feet) overlaying the real property.

ARGUMENTS IN OPPOSITION: According to CSAC Excess Insurance Authority, our public entities are exposed to numerous forms of litigation on an annual basis. Such cases can take years to resolve and result in the expenditure of significant sums of public funds that could otherwise be used in the community. SB 142 creates yet another avenue of potential liability. Presently, SB 142 offers no immunity for public entities for the use of unmanned aerial vehicles. Thus, if this bill is passed, anytime a public entity operates an unmanned aerial vehicle, it will be subject to one or more claims for damages from persons who own the real property over which the vehicle is flying.

Prepared by: Tobias Halvarson / JUD. / (916) 651-4113

4/15/15 16:29:12

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015 - 2016 Regular Session

Bill No: SB 142 (Author:Jackson)

Amended: Version: January 26, 2015

Hearing Date: April 7, 2015

Fiscal: No

Urgency: No

Consultant: TH

SUBJECT

Civil law: Unmanned Aerial Vehicles

DESCRIPTION

Existing law renders one liable for trespass if he or she intentionally enters the land of another, and sets criteria for measuring damages owing due to the wrongful occupation of land. Existing law also provides that a person is liable for physical invasion of privacy where one knowingly enters upon the land of another without permission in order to capture recordings of private activity.

This bill would clarify that the operation of an unmanned aerial vehicle below the navigable airspace overlying the property of another without permission constitutes trespass, and that using such a vehicle in trespass to capture images or recordings of individuals engaged in personal or familial activities constitutes physical invasion of privacy.

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 (FAA) Modernization and Reform Act of 2012.¹ 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.²

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.³ As a result, private citizens are piloting most of the drones one sees in California today. The Modernization and Reform 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.) 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 Mar. 31, 2015].) Even though drone technology is in its infancy, there have already been disputes between landowners who have used these machines to traverse traditional boundaries, including a New Jersey man who shot an aerial drone from the sky when it entered his land. (See Steve Beck, New Jersey Man Accused of Shooting Down Neighbor’s Remote Control Drone <http://philadelphia.cbslocal.com /2014/09/30/new-jersey-man-accused-of-shooting-down-neighbors-remote-control-drone> [as of Mar. 31, 2015].)

This bill would clarify that operation of an unmanned aerial vehicle over the property of another without permission constitutes trespass, and that using such a vehicle in trespass to capture images or recordings may be a physical invasion of privacy.

CHANGES TO EXISTING LAW

Existing law, the California Constitution, provides 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.)

Existing law provides, for the breach of an obligation not arising from contract (including trespass), the measure of damages, except where otherwise expressly provided, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. (Civ. Code Sec. 3333.)

Existing law provides that 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, the reasonable cost of repair or restoration of the property to its original condition, and the costs, if any, of recovering the possession. (Civ. Code Sec. 3334.)

Existing 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. Sec. 40102(a)(32).)

This bill would state that a person wrongfully occupies real property and is liable for damages if, without permission, he or she operates an unmanned aerial vehicle below the navigable airspace, as defined in paragraph (32) of subsection (a) of section 42102 of title 49 of the United States Code, overlaying the real property.

Existing law provides that a person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another person without permission or otherwise committed a trespass 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. (Civ. Code Sec. 1708.8(a).)

This bill would state that a person knowingly enters onto the land of another person pursuant to subdivision (a) of section 1708.8 if he or she operates an unmanned aerial vehicle below the navigable airspace, as defined in paragraph (32) of subsection (a) of section 40102 of title 49 of the United States Code, overlaying the property.

COMMENT

1. Stated need for the bill

The author writes:

Existing law protects the privacy of California residents in their homes both by prohibiting others from entering onto private land without permission, and by prohibiting attempts to capture images or recordings of individuals engaged in personal or familial activities in situations where they have a reasonable expectation of privacy. This bill clarifies how long-standing principles of trespass and privacy apply to unmanned aircraft, also known as drones.

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 clarifies and reinforces California’s existing law on trespass and physical invasion of privacy in two important ways:

• Trespass Includes Entry by Drone:

First, this bill explicitly provides that operating an unmanned aerial vehicle below the federal “navigable airspace” overlaying the property of another constitutes trespass. Just as trespass occurs when one directs a remote controlled vehicle onto another’s property, this bill clarifies that flying a drone in close proximity to another’s land without permission constitutes unauthorized entry.

• Physical Invasion of Privacy Includes Use of Drones:

Second, this bill clarifies that committing trespass in order to physically invade the property of another with the intent of recording their private personal or familial activities includes physical entry by a drone. Just as taking unauthorized pictures of an individual inside their home while standing in their backyard violates their right to privacy, this bill clarifies that directing a drone to do the same thing without permission constitutes physical invasion of privacy.

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. By extending the long-established concepts of trespass and privacy to include drone operations, this bill brings these concepts into the 21st century.

2. Property Right to Overlying Airspace

For the past several centuries, property law has mainly limited its concern to events taking place at or below ground level. California law generally reflects this focus on things terrestrial, and existing laws pertaining to implied easements, trespass, nuisance, and the like typically examine activities taking place on the surface. Consequently, existing law does not clearly delineate the aerial boundary between private property – where owners of land may ostensibly prohibit unauthorized entry by drone – and public airspace.

At common law, the maxim “cuius est solum, eius est usque ad coelum” (whoever owns the soil, it is theirs up to heaven) rendered all airspace above one’s land as part of their estate. With the advent of aircraft and air travel, the common law understanding of property rights extending to the stratosphere gave way to a belief that the public ought to be able to traverse the skies as freely as they do the seas. The case of United States v. Causby (1946) 328 U.S. 256 formalized this new, more limited understanding of aerial property rights. In that case, the U.S. Supreme Court recognized “that the airspace is a public highway,” but also held in unresolved tension that “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.” (Id. at 264.) The Court explained:

[t]he landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. . . . While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used. The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it, and that invasions of it are in the same category as invasions of the surface. (Id. at 264-65.)

While recognizing the existence of these two competing interests, the Court declined to delineate the boundary between public and private airspace. (See Id. at 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 the Causby’s property interests were encroached upon by military aircraft flying 83 feet above their land. (Id. at 258.)

This bill attempts to clarify the boundary between where private property rights end and the public servitude for air travel begins. Specifically, it would provide that operating an unmanned aerial vehicle without permission below the “navigable airspace” overlaying real property constitutes wrongful occupation of real property. Under federal law, “navigable airspace” refers to the “airspace above the minimum altitudes of flight prescribed by regulations under [the Federal Aviation Act of 1958], including airspace needed to ensure safety in the takeoff and landing of aircraft.” (49 U.S.C. Sec. 40102(a)(32).) Though not precisely defined, “navigable airspace” has until recently been thought of as generally describing airspace beginning at a point higher than 400 feet above ground level, as demonstrated in part by a 1981 FAA Advisory (AC 91-57) pertaining to “Model Aircraft Operating Standards,” and such things as the FAA’s regulations declaring the minimum safe operating altitude for fixed-wing aircraft to be 500 feet above ground level. (See 14 C.F.R. Sec. 91.119(c).) However, recent proposed rules pertaining to unmanned aircraft operations suggest that the FAA may expand its definition of “navigable airspace” to include all airspace above ground level. (See FAA Notice of Proposed Rulemaking, Operation and Certification of Small

Unmanned Aircraft Systems, 80 Fed. Reg. 9544 (Feb. 23, 2015) (proposing navigable airspace for drones between 0 and 500 feet above ground level.)

In order to clarify the altitude below which the provisions of this bill would apply, and to correct a drafting error in a citation to federal law, the author offers the following amendments:

Author’s Amendments:

On page 2, line 5, following “she,” insert “does any of the following: (1)”

On page 2, line 8, strike “property” and insert “real property; or”

On page 2, between lines 8 and 9, insert “(2) operates an unmanned aerial vehicle less than 350 feet above ground level within the airspace overlaying the real property.”

On page 2, line 11, following “she,” insert “does any of the following: (1)”

On page 2, line 13, strike “42102” and insert “40102”

On page 2, line 14, strike “property” and insert “property; or”

On page 2, after line 14, insert “(2) operates an unmanned aerial vehicle less than 350 feet above ground level within the airspace overlaying the real property.”

3. California Trespass Law

As discussed in Comment 2, the U.S. Supreme Court has held that an individual’s property rights extend into the airspace overlaying their land. While this right is not absolute, it does encompass one of the most basic of property rights -- the right to exclude. In California, the right to exclude is maintained, in part, through laws providing remedies for civil trespass. Combining the concepts of aerial property rights and civil trespass, the Restatement of Torts states that “a trespass may be committed on, beneath, or above the surface of the earth.” (Restat. 2d of Torts, § 159; see also McKenzie v. Pacific Gas & Electric Co. (Cal.App.5th Dist. 1962) 200 Cal.App.2d 731, 737 (the placement of power lines overlaying private property outside of an easement constitutes trespass).) “The essence of the cause of action for trespass is an “unauthorized entry” onto the land of another. Such invasions are characterized as intentional torts, regardless of the actor’s motivation. Where there is a consensual entry, there is no tort, because lack of consent is an element of the wrong.” (Civic Western Corp. v. Zila Industries, Inc., 66 Cal.App.3d 1, 16-17 (Cal.App.2d Dist. 1977).) However, as it pertains to trespass by airplanes, the Restatement qualifies its pronouncement on aerial trespass, stating that “[f]light by aircraft in the air space above the land of another is a trespass if, but only if, it enters into the immediate reaches of the air space next to the land, and it interferes substantially with the other’s use and enjoyment of his land.” (Restat. 2d of Torts, § 159.)

This bill, as proposed to be amended in Comment 2, clarifies ambiguity surrounding what constitutes the “immediate reaches of air space” and what “substantially interferes with the use and enjoyment of land” by providing that wrongful occupation of real property occurs when one operates an unmanned aerial vehicle without the permission of the landowner less than 350 feet above ground level within the airspace overlaying real property. The American Chemistry Council (ACC), in support, states:

The proliferation of unmanned aerial vehicles has raised questions about potential security threats to critical infrastructure such as chemical plants, refineries, and electricity generating facilities. As states and the federal government look to further regulate the use of unmanned aerial vehicles, ACC feels it is necessary to ensure sufficient protections are in place to prohibit the intentional use of an unmanned aerial vehicle by a private party to conduct surveillance of these types of facilities.

As proposed to be amended, this bill will help ensure that businesses are able to protect critical infrastructure like chemical manufacturing plants by clarifying that these entities have the right, as landowners, to exclude unmanned aerial vehicles from the airspace immediately above their facilities.

4. Measure of Trespass Damages

The measure for trespass damages is given in Civil Code Section 3333, California’s general measure of damages provision. (Hawthorne v. Siegel (1891) 88 Cal. 159, 163.) That section provides “[f]or the breach of an obligation not arising from contract [including trespass], the measure of damages . . . is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. (Civ. Code Sec. 3333.) “When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages.” (Civ. Code Sec. 3360.) When the person committing trespass receives an economic benefit from the trespass, the measure of damages for 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, the reasonable cost of repair or restoration of the property to its original condition, and the costs, if any, of recovering the possession. (Civ. Code Sec. 3334.)

Under this bill’s provisions, a drone operator who flies their aircraft without permission less than 350 feet over the property of another could incur liability ranging from nominal damages to the equivalent of unpaid rent that the landowner would otherwise charge for entry onto his or her land with an aerial vehicle. Additionally, an aggrieved landowner could, in some circumstances, petition a court for an injunction or a restraining order to prevent a drone operator from repeatedly trespassing within the landowner’s airspace.

The CSAC Excess Insurance Authority, writing in opposition, raises concerns about potential trespass liability resulting from the use of unmanned aerial vehicles over private property, and states:

Unfortunately, SB 142 does not appear to take any of the positive aspects of unmanned aerial vehicles into consideration and, instead, creates liability for wrongful occupation of real property anytime an unmanned aerial vehicle flies over real property without first obtaining permission from the owner of the real property. The reality is that such flyover would occur on almost all occasions when an unmanned aerial vehicle is used as it would be difficult for the operator of the vehicle to ensure that he or she is only flying the vehicle over property owned by the entity that is operating the vehicle.

This concern over liability fails to take into consideration that, under existing law, flying unmanned aerial vehicles over private property without permission may already constitute trespass, especially when such flights occur close to ground level or occupied structures. Rather than imposing additional liability, this bill creates clear guidelines for drone operators to avoid liability for trespass. California law has traditionally marked property boundaries with things like fences, gates, and walls, but similarly clear boundaries do not exist under laws pertaining to aerial trespass (discussed in Comment 3 above). This bill, as proposed to be amended in Comment 2, would create a clear boundary at the 350 foot level, and would provide drone operators with a measure of certainty not present in existing trespass law.

5. Drone Operations on Public Land

On February 17, 2015, this Committee held an oversight hearing on the subject of integrating unmanned aerial vehicles into California’s airspace. During that hearing, managers of public lands expressed a desire to be able to exclude drones from flying over lands under their charge, stating that unrestricted drone use in the skies overlying property under their care could undermine resource values they are tasked with preserving. As an example of the problems drone use on public lands might cause, witnesses mentioned instances where drone use by visitors to the National Parks have threatened wildlife and risked damaging natural features like geysers and thermal pools. (See Mike Koshmrl, Despite Ban in Parks, Drones Are in the Air <http://www.jhnewsandguide.com/news/environmental/despite-ban-in-parks-drones-are-in-the-air/article_b2190e3a-893b-5229-b5bc-370b0946f71e.html> [as of Mar. 31, 2015].) Indeed, the National Park Service has responded by issuing a temporary moratorium on private unpermitted drone use in National Park units until more long-term regulations can be formulated. (See Unmanned Aircraft to be Prohibited in America’s National Parks <http://home.nps.gov/news/release.htm?id=1601> [as of Mar. 31, 2015].) More generally, witnesses stated that drone use in city parks may present a safety risk to park visitors, especially for aerial vehicles with exposed fast-moving components or operators with insufficient training. In a similar manner, witnesses representing the public safety community testified that unrestricted drone use over public lands hosting prisons, police stations, and military installations, may threaten the security of such facilities.

While this bill does not address drone use on public lands directly, staff notes that under existing law public land managers, acting as representatives of the public, can already use California’s civil trespass statutes in the management of public lands. (See e.g. California v. Kinder Morgan Energy Partners, L.P. (S.D. Cal. Jan. 25, 2013) 2013 U.S. Dist. LEXIS 10503, 52 (discussing application of California civil trespass law to public land).) It is therefore likely that, under existing law, public land managers may already have the same authority as private individuals to close airspace under their control to drone operations. (See Comment 3 (discussing aircraft trespass under existing law.) As with private land, this bill would help clarify the zone of airspace overlaying public land subject to control by land managers.

6. Physical Invasion of Privacy

The California Constitution provides that all people have inalienable rights, including the right to pursue and obtain privacy. (Cal. Const. art. I, Sec. 1.) Because of their inherent maneuverability and the ease with which they may enter spaces infeasible for manned aircraft, the growth of unmanned aerial vehicle technology presents a challenge to maintaining traditional boundaries that separate public and private spheres, and to preserving the fundamental right to privacy in California.

Existing law, Civil Code Section 1708.8(a), creates a cause of action for “physical invasion of privacy” where an individual knowingly enters the land of another person in order to invade his or her privacy by capturing a visual image, sound recording, or other physical impression of that person engaging in a personal or familial activity. This bill would provide that a person knowingly enters onto the land of another pursuant to Section 1708.8(a) if he or she operates an unmanned aerial vehicle below the “navigable airspace” overlaying the real property, or if he or she operates an unmanned aerial vehicle less than 350 feet above ground level within the airspace overlaying the real property.

As with aerial trespass, existing law in California is ambiguous as to what qualifies as knowingly entering the land of another when the activity occurs above ground level. This bill would clarify that ambiguity by specifying that knowingly entering the land of another includes piloting a drone lower than 350 feet above someone else’s private property. As a consequence, this bill would allow an aggrieved party to bring an action for physical invasion of privacy where a drone pilot uses an unmanned aircraft to enter the property of another and record that person’s personal or familial activities. In so doing, this bill would strengthen the right to privacy California residents enjoy while on their own property.

7. Constructive Invasion of Privacy

Existing law also protects the right of privacy from invasive activities occurring outside one’s property through the tort of “constructive invasion of privacy.” Codified at Civil Code Section 1708.8(b), this tort renders a person liable for invasion of privacy when they attempt to capture, in a highly offensive manner, any type of visual image, sound recording, or other physical impression of another person in which that person had a reasonable expectation of privacy, through the use of any device, regardless of whether there was a physical trespass, if the image or recording could not have been achieved without a trespass unless the device was used. Unlike physical invasion of privacy which is premised on physical trespass, the tort of constructive invasion of privacy requires a plaintiff to show that his or her “reasonable expectation of privacy” has been violated. A constructive invasion of privacy claim may, for example, be brought against a person who took photos of a neighbor in a secluded portion of his or her property even though the photographer never stepped foot onto that person’s private land.

Some stakeholders have raised concerns that this bill does not address the use of drones outside a property’s overlying airspace – such as on nearby public streets or adjacent property – to observe or record private activities occurring on private property. As discussed above, California’s existing tort on constructive invasion of privacy likely captures these types of activities, including operating a drone on a public street to look over a tall backyard fence and see inside a house.

8. Preserving Rights While Allowing for Innovation

It is important to note that while the emergence of drone technology presents some compelling public policy challenges, this new technology could potentially revolutionize the way Californians interact with each other and could transform California’s economy. A report from Business Insider’s Intelligence Unit estimates that “[twelve percent] of an estimated $98 billion in cumulative global spending on aerial drones over the next decade will be for commercial purposes.” (Marcelo Ballve, Commercial Drones: Assessing The Potential For A New Drone-Powered Economy <http://www.businessinsider.com/the-commercial-drones-market-2014-10> [as of Mar. 31, 2015].) “While drones are unlikely to become a part of our daily lives in the immediate future,” Business Insider concludes that “they will soon begin taking on much larger roles for businesses and some individual consumers, from delivering groceries and e-commerce orders to revolutionizing private security, to changing the way farmers manage their crops — perhaps even aerial advertising.” (Id.)

This bill seeks to balance privacy and property interests with the need to create unrestricted space for drone operations, thus ensuring that California will remain a participant in the new drone-based economy. Specifically, the author’s amendments offered in Comment 2 create a corridor for drone operations between 350 feet and 500 feet above ground level, the latter being the floor for manned aircraft operations under existing FAA regulations. Should the FAA authorize the commercial use of drones in the United States, this bill would ensure that California has designated airspace where commercial operators could fly their unmanned vehicles. Of course, just as under existing law, property owners can give businesses permission to come onto their private land, which means that, with landowner permission (and FAA authorization), drone operators could in the future be able to fly deliveries right to your doorstep. Under this bill, large property owners, like commercial farms, would be free to deploy unmanned aerial vehicles across their land to deliver pesticides or monitor crop conditions, and technology companies like Facebook could use solar powered drones at the appropriate altitude to provide internet connectivity to remote areas. (See Issie Lapowsky, Facebook Lays Out Its Roadmap for Creating Internet-Connected Drones < http://www.wired.com/ 2014/09/facebook-drones-2/> [as of Mar. 31, 2015].) Additionally, this bill would ensure that hobbyists remain free to fly drones for recreational purposes, either on their own property, on public property where such activities are allowed, or throughout an aerial corridor between 350 and 400 feet above ground level.

Support: American Chemistry Council; Privacy Rights Clearinghouse; One Individual

Opposition: CSAC Excess Insurance Authority

HISTORY

Source: Author

Related Pending Legislation:

SB 170 (Gaines, 2015) would provide that a person who knowingly and intentionally operates an unmanned aircraft system below “navigable airspace,” as defined in federal law, overlaying a state prison is guilty of a misdemeanor, and would also provide, with certain exceptions, that a person who knowingly and intentionally captures images or data of a state prison through the operation of an unmanned aircraft is guilty of a misdemeanor. This bill is pending in the Senate Public Safety Committee.

SB 262 (Galgiani, 2015) would authorize law enforcement agencies to use unmanned aircraft if the use of such aircraft complies with protections against unreasonable searches guaranteed by the United States Constitution and the California Constitution, federal law applicable to the use of an unmanned aircraft system by a law enforcement agency, and state law applicable to a law enforcement agency’s use of surveillance technology that can be attached to an unmanned aircraft system. This bill is pending in the Senate Public Safety Committee.

SB 271 (Gaines, 2015) would make it an infraction to operate an unmanned aircraft on or above the grounds of a public school providing instruction in kindergarten or grades 1 to 12. Violators would face a fine of no more than $150 for the first violation, and a fine of no more than $500 for each subsequent violation. This bill is pending in the Senate Public Safety Committee.

AB 14 (Waldron, 2015) would create the Unmanned Aircraft Systems Task Force, which would be required to research, develop, and formulate a comprehensive policy for unmanned aircraft systems in California. The task force would be 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. This bill is pending in the Assembly Transportation Committee.

AB 56 (Quirk, 2015) would prohibit 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 for use is unrelated to the gathering of criminal intelligence. The bill would also require notice by public agencies intending to deploy unmanned aircraft, would require images, footage, or data obtained through the use of such aircraft to be permanently destroyed within one year except as specified, and would prohibit equipping unmanned aircraft with weapons. This bill is pending in the Assembly Public Safety Committee.

Prior Legislation:

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. This 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. This bill died in the Assembly Public Safety Committee.

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. This bill was set for hearing in the Assembly Transportation Committee, but the hearing was cancelled at the author’s request.

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