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HL Chronicle of Data Protection Privacy & Information Security News & Trends
Posted in Consumer Privacy, Privacy & Security Litigation

California Legislature Advances UAS Legislation

shutterstock_149083385For the past several years, California’s Legislature has actively sought to regulate unmanned aerial systems (“UAS”), including, but not only, through privacy-related legislation.

In the 2014 session, one bill (AB 2306) passed and was signed by Governor Brown.  It bans the use of UAS to capture images or record voices of people without their permission, and is widely regarded as an anti-paparazzi law, aimed at protecting the many celebrities – and their children – in California’s entertainment industry.  However, the wording of the bill more broadly protects individuals’ privacy from visual or audio recording in a manner that is “offensive to a reasonable person … under circumstances in which the [person] had a reasonable expectation of privacy” if the recording could not have been made without either trespassing or using special equipment (such as a UAS).  The bill is codified at California Civil Code section 1708.8.

In the 2015 session, the California Legislature introduced five more bills, covering a range of issues.

Invasion of Property.  Both the Senate and Assembly have approved versions of SB 142.  As originally drafted, SB 142 would have made it an invasion of privacy to fly a UAS over the property of another, lower than 350 feet, without permission, in order to capture images or recordings of someone engaged in private activity, if the invasion would be offensive to a reasonable person.  As amended by the Assembly, SB 142 simply makes it a wrongful occupation of real property to fly a UAS over property, without permission, at a height of less than 350 feet.  The Assembly version of the bill now returns to the Senate for approval of the Assembly’s amendments, and ultimately to Governor Brown for signature.  The new provision would be enacted as California Civil Code section 1708.83.

Public Agency Use of UAS.  This session, the Assembly introduced AB 56, which is essentially the same as a bill vetoed by Governor Brown in the 2014 session (AB 1327).  AB 56 would generally prohibit public agencies from using UASs (with certain exceptions including for law enforcement).  It would also regulate disclosure of any footage, images or data obtained using UASs.  AB 56 has passed in the Assembly, has passed the Senate appropriations committee, and has been placed on the suspense file for further consideration once the state’s overall budget picture is better known.

Flying Over Prisons. SB 170 would make it a misdemeanor to fly UASs on or above the grounds of a state prison or jail. This bill passed the Senate and the Assembly appropriations committee.  This precise issue made headlines earlier this summer, when a UAS was used to drop contraband into a prison in Ohio.

Flying Over Schools. SB 271 would make it an infraction to fly UASs on or above K-12 school grounds during school hours, without the principal’s permission.  The bill would not apply to the media – unless the principal has asked them to stop.  This bill also passed the Senate and the Assembly appropriations committee.

Unmanned Aircraft Task Force.  Finally, AB 14 would create an Unmanned Aircraft Task Force, charged with developing a comprehensive plan and proposed legislation for state regulation of unmanned aircraft.  The members of the task force would represent the military, education, agriculture, economic development, the aerospace industry, the model aeronautics academy, law enforcement, and other industry interests. AB 14 failed to pass the Assembly Transportation Committee in April 2015, and, although reconsideration was granted, it has not advanced.