BILL NUMBER: SB 15 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 12, 2013
AMENDED IN SENATE MAY 24, 2013
AMENDED IN SENATE APRIL 22, 2013
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senator Padilla
(Coauthor: Senator Jackson)
DECEMBER 3, 2012
An act to amend Section 1708.8 of the Civil Code, and to amend
Sections 632 and 647 of, and to add Title 14 (commencing with Section
14350) to Part 4 of, the Penal Code, relating to aviation.
LEGISLATIVE COUNSEL'S DIGEST
SB 15, as amended, Padilla. Aviation: unmanned aircraft systems.
Existing federal law, the Federal Aviation Administration
Modernization and Reform Act of 2012, provides for the integration of
civil unmanned aircraft systems 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 provides that a person is subject to civil liability
for constructive invasion of privacy when the 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 engaged in a personal or familial activity under
circumstances involving a reasonable expectation of privacy, through
the use of a visual or auditory enhancing device, as specified.
Existing law makes it a crime for a person, intentionally, and
without requisite consent, to eavesdrop on a confidential
communication by means of any electronic amplifying or recording
device.
Existing law makes it a crime for a person to look through a hole
or opening or otherwise view, by means of any instrumentality, the
interior of bedrooms, bathrooms, and various other areas in which an
occupant has a reasonable expectation of privacy, with the intent to
invade the privacy of one or more persons inside. Existing law makes
it a crime for a person to use a concealed camcorder, motion picture
camera, or photographic camera to secretly videotape, film,
photograph, or record by electronic means, without consent, another
identifiable person, under or through the clothing being worn by that
person or if that person may be in a state of full or partial
undress, under circumstances when that person has a reasonable
expectation of privacy and when there is an intent to invade the
privacy of that person, as specified.
This bill would, under the above-referenced civil and criminal
provisions, provide that engaging in the prohibited activities
with devices or instrumentalities affixed to or contained
within through the use of an unmanned aircraft
system is included within the prohibitions. With respect to the
criminal provisions, the bill would impose a state-mandated local
program by changing the definition of a crime.
This bill would also provide that an unmanned aircraft system may
not be equipped with a weapon, as defined. The bill would make
equipping an unmanned aircraft system with a weapon a crime,
punishable as specified. By creating a new crime, the bill would
impose a state-mandated local program.
This bill would define "unmanned aircraft system" for all of these
purposes.
Existing law provides that a search warrant may only be issued
upon probable cause, supported by affidavit, naming or describing the
person to be searched or searched for, and particularly describing
the property, thing or things, and the place to be searched.
This bill would require a law enforcement agency to obtain a
search warrant when using an unmanned aircraft, as specified, and
require that an application for the search warrant specify if an
unmanned aircraft system, as defined, will be used in the execution
of the search warrant, and the intended purpose for which the
unmanned aircraft system will be used.
This bill would also state the intent of the Legislature to enact
legislation that would establish appropriate standards for the use of
unmanned aircraft systems.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Recent developments and innovations have allowed computer
technology to advance to the point where vehicles, including
aircraft, can operate without the need of an on-board operator.
(b) On February 14, 2012, President Obama signed into law the
Federal Aviation Administration Modernization and Reform Act of 2012,
which, among other things, requires the Federal Aviation
Administration to fully integrate government, commercial, and
recreational unmanned aircraft systems, commonly known as "drones,"
into United States airspace before October 2015.
(c) While privately and publicly operated unmanned aircraft
systems can have a legitimate role in areas such as agriculture,
scientific research, and public safety, these systems present new
challenges to the privacy and due process rights of Californians.
(d) Both public and private operators of unmanned aircraft systems
have a responsibility not to infringe on the rights, property, or
privacy of the citizens of California, and any data, information,
photographs, video, or recordings of individuals, both public and
private, should be minimized and retained in a manner consistent with
current privacy standards.
(e) It is the intent of the Legislature to enact legislation that
would establish appropriate standards for the use of unmanned
aircraft systems in California.
SEC. 2. Section 1708.8 of the Civil Code is amended to read:
1708.8. (a) 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
physically invade the privacy of the plaintiff with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial
activity and the physical invasion occurs in a manner that is
offensive to a reasonable person.
(b) A person is liable for constructive invasion of privacy 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 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, including a device affixed to or
contained within or through the use of an
unmanned aircraft system as defined in Section 14350 of the Penal
Code, regardless of whether there is a physical trespass, if this
image, sound recording, or other physical impression could not have
been achieved without a trespass unless the visual or auditory
enhancing device or unmanned aircraft system was used.
(c) An assault or false imprisonment committed with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff is subject to subdivisions (d), (e), and
(h).
(d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of
this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial purpose,
the defendant shall also be subject to disgorgement to the plaintiff
of any proceeds or other consideration obtained as a result of the
violation of this section. A person who comes within the description
of this subdivision is also subject to a civil fine of not less than
five thousand dollars ($5,000) and not more than fifty thousand
dollars ($50,000).
(e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each violation. In addition, the
person that directs, solicits, actually induces, or actually causes
another person, regardless of whether there is an employer-employee
relationship, to violate this section shall be liable for punitive
damages to the extent that an employer would be subject to punitive
damages pursuant to subdivision (b) of Section 3294. A person who
comes within the description of this subdivision is also subject to a
civil fine of not less than five thousand dollars ($5,000) and not
more than fifty thousand dollars ($50,000).
(f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast, sold
or offered for sale, the visual image, sound recording, or other
physical impression with actual knowledge that it was taken or
captured in violation of subdivision (a), (b), or (c), and was
provided compensation, consideration, or remuneration, monetary or
otherwise, for the rights to the unlawfully obtained visual image,
sound recording, or other physical impression.
(2) For the purposes of paragraph (1), "actual knowledge" means
actual awareness, understanding, and recognition, obtained prior to
the time at which the person purchased or acquired the visual image,
sound recording, or other physical impression, that the visual image,
sound recording, or other physical impression was taken or captured
in violation of subdivision (a), (b), or (c). The plaintiff shall
establish actual knowledge by clear and convincing evidence.
(3) Any person that publicly transmits, publishes, broadcasts,
sells or offers for sale, in any form, medium, format or work, a
visual image, sound recording, or other physical impression that was
previously publicly transmitted, published, broadcast, sold or
offered for sale, by another person, is exempt from liability under
this section.
(4) If a person's first public transmission, publication,
broadcast, or sale or offer for sale, of a visual image, sound
recording, or other physical impression that was taken or captured in
violation of subdivision (a), (b), or (c), does not constitute a
violation of this section, that person's subsequent public
transmission, publication, broadcast, sale or offer for sale, in any
form, medium, format or work, of the visual image, sound recording,
or other physical impression, does not constitute a violation of this
section.
(5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.
(6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.
(7) This section shall not be construed to limit any other cause
of action, right, or remedy of the plaintiff in law or equity,
including, but not limited to, the publication of private facts.
(g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or employees
of governmental agencies or other entities, either public or private
who, in the course and scope of their employment, and supported by
an articulable suspicion, attempt to capture any type of visual
image, sound recording, or other physical impression of a person
during an investigation, surveillance, or monitoring of any conduct
to obtain evidence of suspected illegal activity or other misconduct,
the suspected violation of any administrative rule or regulation, a
suspected fraudulent conduct, or any activity involving a violation
of law or business practices or conduct of public officials adversely
affecting the public welfare, health, or safety.
(h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a), (b),
or (c).
(i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(j) It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold.
(k) For the purposes of this section, "for a commercial purpose"
means any act done with the expectation of a sale, financial gain, or
other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended to
have been, captured for a commercial purpose unless it is intended to
be, or was in fact, sold, published, or transmitted.
(l) For the purposes of this section, "personal and familial
activity" includes, but is not limited to, intimate details of the
plaintiff's personal life, interactions with the plaintiff's family
or significant others, or other aspects of the plaintiff's private
affairs or concerns. "Personal and familial activity" does not
include illegal or otherwise criminal activity as delineated in
subdivision (g). However, "personal and familial activity" shall
include the activities of victims of crime in circumstances under
which subdivision (a), (b), or (c) would apply.
(m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.
(2) Fines collected pursuant to this subdivision shall be
allocated, as follows:
(A) One-half shall be allocated to the prosecuting agency.
(B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.
(3) Funds in the Arts and Entertainment Fund created pursuant to
paragraph (2) may be expended by the California Arts Council, upon
appropriation by the Legislature, to issue grants pursuant to the
Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9
(commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).
(4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies provided
by law.
(n) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
SEC. 3. Section 632 of the Penal Code is amended to read:
632. (a) Every person who, intentionally and without the consent
of all parties to a confidential communication, by means of any
electronic amplifying or recording device, including a device affixed
to or contained within an unmanned aircraft system as defined in
Section 14350, eavesdrops upon or records the confidential
communication, whether the communication is carried on among the
parties in the presence of one another or by means of a telegraph,
telephone, or other device, except a radio, shall be punished by a
fine not exceeding two thousand five hundred dollars ($2,500), or
imprisonment in a county jail not exceeding one year, or in the state
prison, or by both that fine and imprisonment. If the person has
previously been convicted of a violation of this section or Section
631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a
fine not exceeding ten thousand dollars ($10,000), by imprisonment in
a county jail not exceeding one year, or in the state prison, or by
both that fine and imprisonment.
(b) The term "person" includes an individual, business
association, partnership, corporation, limited liability company, or
other legal entity, and an individual acting or purporting to act for
or on behalf of any government or subdivision thereof, whether
federal, state, or local, but excludes an individual known by all
parties to a confidential communication to be overhearing or
recording the communication.
(c) The term "confidential communication" includes any
communication carried on in circumstances as may reasonably indicate
that any party to the communication desires it to be confined to the
parties thereto, but excludes a communication made in a public
gathering or in any legislative, judicial, executive or
administrative proceeding open to the public, or in any other
circumstance in which the parties to the communication may reasonably
expect that the communication may be overheard or recorded.
(d) Except as proof in an action or prosecution for violation of
this section, no evidence obtained as a result of eavesdropping upon
or recording a confidential communication in violation of this
section shall be admissible in any judicial, administrative,
legislative, or other proceeding.
(e) This section does not apply (1) to any public utility engaged
in the business of providing communications services and facilities,
or to the officers, employees or agents thereof, where the acts
otherwise prohibited by this section are for the purpose of
construction, maintenance, conduct or operation of the services and
facilities of the public utility, or (2) to the use of any
instrument, equipment, facility, or service furnished and used
pursuant to the tariffs of a public utility, or (3) to any telephonic
communication system used for communication exclusively within a
state, county, city and county, or city correctional facility.
(f) This section does not apply to the use of hearing aids and
similar devices, by persons afflicted with impaired hearing, for the
purpose of overcoming the impairment to permit the hearing of sounds
ordinarily audible to the human ear.
SEC. 4. Section 647 of the Penal Code is amended to read:
647. Except as provided in subdivision (l), every person who
commits any of the following acts is guilty of disorderly conduct, a
misdemeanor:
(a) Who solicits anyone to engage in or who engages in lewd or
dissolute conduct in any public place or in any place open to the
public or exposed to public view.
(b) Who solicits or who agrees to engage in or who engages in any
act of prostitution. A person agrees to engage in an act of
prostitution when, with specific intent to so engage, he or she
manifests an acceptance of an offer or solicitation to so engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution. No
agreement to engage in an act of prostitution shall constitute a
violation of this subdivision unless some act, in addition to the
agreement, is done within this state in furtherance of the commission
of an act of prostitution by the person agreeing to engage in that
act. As used in this subdivision, "prostitution" includes any lewd
act between persons for money or other consideration.
(c) Who accosts other persons in any public place or in any place
open to the public for the purpose of begging or soliciting alms.
(d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.
(e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.
(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.
(g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour treatment
and evaluation of inebriates. A peace officer may place a person in
civil protective custody with that kind and degree of force which
would be lawful were he or she effecting an arrest for a misdemeanor
without a warrant. No person who has been placed in civil protective
custody shall thereafter be subject to any criminal prosecution or
juvenile court proceeding based on the facts giving rise to this
placement. This subdivision shall not apply to the following persons:
(1) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.
(2) Any person who a peace officer has probable cause to believe
has committed any felony, or who has committed any misdemeanor in
addition to subdivision (f).
(3) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.
(h) Who loiters, prowls, or wanders upon the private property of
another, at any time, without visible or lawful business with the
owner or occupant. As used in this subdivision, "loiter" means to
delay or linger without a lawful purpose for being on the property
and for the purpose of committing a crime as opportunity may be
discovered.
(i) Who, while loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of any
inhabited building or structure, without visible or lawful business
with the owner or occupant.
(j) (1) Any person who looks through a hole or opening, into, or
otherwise views, by means of any instrumentality, including, but not
limited to, a periscope, telescope, binoculars, camera, motion
picture camera, camcorder, or mobile phone, or by means of any of
these instrumentalities affixed to or contained within an unmanned
aircraft system as defined in Section 14350, the interior of a
bedroom, bathroom, changing room, fitting room, dressing room, or
tanning booth, or the interior of any other area in which the
occupant has a reasonable expectation of privacy, with the intent to
invade the privacy of a person or persons inside. This subdivision
shall not apply to those areas of a private business used to count
currency or other negotiable instruments.
(2) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, including any of those
devices when affixed to or contained within an unmanned aircraft
system, to secretly videotape, film, photograph, or record by
electronic means, another, identifiable person under or through the
clothing being worn by that other person, for the purpose of viewing
the body of, or the undergarments worn by, that other person, without
the consent or knowledge of that other person, with the intent to
arouse, appeal to, or gratify the lust, passions, or sexual desires
of that person and invade the privacy of that other person, under
circumstances in which the other person has a reasonable expectation
of privacy.
(3) (A) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, including any of those
devices when affixed to or contained within an unmanned aircraft
system, to secretly videotape, film, photograph, or record by
electronic means, another, identifiable person who may be in a state
of full or partial undress, for the purpose of viewing the body of,
or the undergarments worn by, that other person, without the consent
or knowledge of that other person, in the interior of a bedroom,
bathroom, changing room, fitting room, dressing room, or tanning
booth, or the interior of any other area in which that other person
has a reasonable expectation of privacy, with the intent to invade
the privacy of that other person.
(B) Neither of the following is a defense to the crime specified
in this paragraph:
(i) The defendant was a cohabitant, landlord, tenant, cotenant,
employer, employee, or business partner or associate of the victim,
or an agent of any of these.
(ii) The victim was not in a state of full or partial undress.
(k) In any accusatory pleading charging a violation of subdivision
(b), if the defendant has been once previously convicted of a
violation of that subdivision, the previous conviction shall be
charged in the accusatory pleading. If the previous conviction is
found to be true by the jury, upon a jury trial, or by the court,
upon a court trial, or is admitted by the defendant, the defendant
shall be imprisoned in a county jail for a period of not less than 45
days and shall not be eligible for release upon completion of
sentence, on probation, on parole, on work furlough or work release,
or on any other basis until he or she has served a period of not less
than 45 days in a county jail. In all cases in which probation is
granted, the court shall require as a condition thereof that the
person be confined in a county jail for at least 45 days. In no event
does the court have the power to absolve a person who violates this
subdivision from the obligation of spending at least 45 days in
confinement in a county jail.
In any accusatory pleading charging a violation of subdivision
(b), if the defendant has been previously convicted two or more times
of a violation of that subdivision, each of these previous
convictions shall be charged in the accusatory pleading. If two or
more of these previous convictions are found to be true by the jury,
upon a jury trial, or by the court, upon a court trial, or are
admitted by the defendant, the defendant shall be imprisoned in a
county jail for a period of not less than 90 days and shall not be
eligible for release upon completion of sentence, on probation, on
parole, on work furlough or work release, or on any other basis until
he or she has served a period of not less than 90 days in a county
jail. In all cases in which probation is granted, the court shall
require as a condition thereof that the person be confined in a
county jail for at least 90 days. In no event does the court have the
power to absolve a person who violates this subdivision from the
obligation of spending at least 90 days in confinement in a county
jail.
In addition to any punishment prescribed by this section, a court
may suspend, for not more than 30 days, the privilege of the person
to operate a motor vehicle pursuant to Section 13201.5 of the Vehicle
Code for any violation of subdivision (b) that was committed within
1,000 feet of a private residence and with the use of a vehicle. In
lieu of the suspension, the court may order a person's privilege to
operate a motor vehicle restricted, for not more than six months, to
necessary travel to and from the person's place of employment or
education. If driving a motor vehicle is necessary to perform the
duties of the person's employment, the court may also allow the
person to drive in that person's scope of employment.
(l) (1) A second or subsequent violation of subdivision (j) is
punishable by imprisonment in a county jail not exceeding one year,
or by a fine not exceeding two thousand dollars ($2,000), or by both
that fine and imprisonment.
(2) If the victim of a violation of subdivision (j) was a minor at
the time of the offense, the violation is punishable by imprisonment
in a county jail not exceeding one year, or by a fine not exceeding
two thousand dollars ($2,000), or by both that fine and imprisonment.
SEC. 5. Title 14 (commencing with Section 14350) is added to Part
4 of the Penal Code, to read:
TITLE 14. UNMANNED AIRCRAFT SYSTEMS
14350. "Unmanned aircraft system" means 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 the unmanned aircraft safely and efficiently
within the national airspace system.
14351. (a) An unmanned aircraft system may not be equipped with a
weapon.
(b) Equipping an unmanned aircraft system with a weapon is
punishable by a fine not exceeding one thousand dollars ($1,000), or
by imprisonment in the a county jail
not exceeding three months, or by both the fine and imprisonment.
(c) For purposes of this section, "weapon" means any instrument
likely to produce great bodily injury or damage to, or the
destruction of, real or personal property.
(d) This section and any other provision of this part which makes
a violation of this title a crime shall not preclude application of
any other criminal provision to an act or omission which constitutes
a violation of this part.
14352. (a) A law enforcement agency shall obtain a search warrant
when using an unmanned aircraft system under circumstances where a
search warrant is required.
(b) A search warrant is not required for the use of an unmanned
aircraft system under circumstances where there is an exception to
the search warrant requirement, or under exigent circumstances.
(c) The search warrant application shall specify if an unmanned
aircraft system, as defined in Section 14350, will be used in the
execution of the search warrant, and the intended purpose for which
the unmanned aircraft system will be used.
SEC. 6. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.