By: Barbara E. Lichman, PhD

California legislators are taking advantage of the continuing absence of federal regulation of unmanned aircraft systems (“UAS” or “drones”), and the provisions of the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FMRA”), allowing state and local governments to regulate drone operation in the absence of federal regulation.  Between the start of the new California legislative session, through February 27, 2015, the last day for Bills to be submitted, legislators introduced five Bills.  The most comprehensive of these is AB37, introduced by Assemblymember Campos, and referred to the Assembly Committee of Public Safety, Civil Procedure and Privacy.

AB37 would prohibit most public agencies from using drones, with the exception of law enforcement agencies using them to achieve the core mission of the agency, as long as the purpose is unrelated to the gathering of criminal intelligence.  In addition, even where permitted, the agency would be required to give notice of its intent to use a drone; would generally be prohibited from dissemination under the California Public Records Act, Cal. Gov. Code § 6250, et seq., of images, footage and/or data collected, if disclosure would endanger the safety of a person involved in the investigation; and would be further required to permanently destroy the records within one year.   Finally, unless authorized by federal law, AB37 would prohibit a person or entity, including a public agency, from equipping or arming a drone with a weapon or other device that may be carried by, or launched from, a drone that is intended to cause bodily injury, death, or damage to real or personal property.  (A largely identical Bill, except for a provision prohibiting reimbursement of costs to a local agency or school district, was introduced by Assemblymember Quirk and referred to the same Committee. )

While AB37 is largely aimed at regulating the use of drones by public agencies, complimentary legislation, SB142, introduced by Senator Jackson and referred to the Senate Judiciary Committee, and SB271, introduced by Senator Gaines and referred to the Committee on Public Safety, seek to supplement existing law governing private conduct.  SB142 extends the existing liability imposed for physical invasion of privacy, where 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.  In addition, SB142 would define intentional entry upon the land of another also to include operation of a drone below the navigable airspace overlaying the property, and would extend liability for wrongful occupation of real property and damages to a person who, without permission, operates a drone below the navigable airspace.

SB271, in turn, would create a new violation of law for the operation of a drone on or above the grounds of a public school providing instruction in Kindergarten or grades 1-12, inclusive, and would provide for a fine of no more than $150 for the first violation, and no more than $500 for each subsequent violation.

Finally, apparently recognizing the need for a more comprehensive approach, AB14, introduced by Assemblymember Waldron and referred to the Assembly Committee on Transportation, would create an “Unmanned Aircraft Task Force.”  Its purpose would be to formulate a comprehensive plan for state regulation of drones.  The Task Force would be required to submit, among other things, a comprehensive policy draft and suggested legislation pertaining to drones to the Legislature and the Governor on or before January 1, 2018.  The Bill would also provide that these provisions are repealed on January 1, 2022.

While distinguishable, each of these pieces of legislation appears to have the same basic rationale – to ensure that drone operation does not violate Constitutional privacy or self-incrimination protections, and to protect the public from indirect use of deadly force through the use of a drone.  The “jury” remains out on whether any or all of these measures will be enacted in their original forms; or, if they are, whether they will ultimately be in conflict with the terms of yet to be completed federal regulation, thus triggering a battle over the preemptive authority of federal law.  Stay tuned.

From the Aviation & Airport Law News Blog