By: Donald P. Wagner, Esq.
Two significant pieces of legislation proposing to limit and/or control the use of unmanned aircraft systems (“UAS” or “drone”) were passed by the California Legislature last week and now await the signature of Governor Jerry Brown.
The first of the two bills, AB 1327 by Jeff Gorell, places certain limits on the use of drones, both by the government and private parties. For example, it bans any weaponization of drones unless specifically authorized by federal law. It also extends existing privacy and wiretapping/electronic eavesdropping protections to the private use of drones but does not prohibit their use in situations where privacy concerns are not likely to be significant, such as those circumstances consistent with the “core mission” of non-law enforcement public agencies like fire or oil spill detection. One can expect the inevitable round of litigation to flesh out the limits of such circumstances and situations where privacy concerns are not likely to be significant.
The bill further permits the use of drones by law enforcement agencies without a search warrant in emergency situations such “hot pursuit,” search and rescue operations, fires, and hostage takings. Such use, however, is limited to cases where “there is an imminent threat to life or great bodily harm.” Although not specified in the legislation, warrants would otherwise seem to be required under the bill consistent with current practice and Constitutional requirements. Finally, the bill makes clear that the public has a right to know about such governmental drone uses. Any “images, footage, or data obtained through the use of an unmanned aircraft system or any record, including but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system” is presumptively subject to disclosure under the Public Records Act.
Although AB 1327 passed with overwhelming support in the legislature, it does not hit the governor’s desk without opposition. The California Newspaper Publishers Association, the California State Sheriffs’ Association, and the California Police Chiefs’ Association, among others, argued against the bill. According to the Sheriffs’ Association:
This measure would impose requirements for the use of unmanned aircraft in excess of what is required for the use of manned aircraft. While we understand the privacy concerns that may arise from the misuse of unmanned aircraft, we believe that it is inappropriate to impose requirements beyond what is necessary under the Fourth Amendment . . . to protect against unreasonable searches and seizures.
In addition, AB 1327 would require law enforcement to destroy information within [six months] of being obtained by an unmanned aircraft system. Unfortunately, criminal investigations do not neatly fall into timelines. [This requirement] will severely hamper investigations for law enforcement.
Separately, the Newspaper Publishers Association complained that AB 1327 conditioned
access to information on factors that have no bearing on whether there is a greater public interest to be protected by withholding the record, [which] would make public access to drone information arbitrary. [¶] [The Publishers Association] strongly believes that this approach would create a dangerous precedent that would undermine the presumptive right of public access to information established by the [California Public Records Act] and the California Constitution.
The opposition will now take these arguments to Governor Brown.
The second significant drone legislation is AB 2306 by Ed Chau. It also passed through the legislature with overwhelming bipartisan support. In short, it provides that the use of any device, including and especially a drone, to capture an image or sound recording of a person engaged in a personal or familial activity under circumstances in which the person has a reasonable expectation of privacy constitutes a constructive invasion of privacy. Additionally, it is also a constructive invasion of privacy when the drone user attempts to capture through the use of a visual or auditory enhancing device, 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 personal or familial activity under circumstances in which the person had a reasonable expectation of privacy. An actual physical trespass to obtain the image or sound is unnecessary if the picture or recording could not have otherwise been obtained without a trespass and without the use of the visual or auditory enhancing device. Any violation of this drone law can result in the imposition of actual, treble, and punitive damages.
As with AB 1327, litigation will likely determine the reach and application of some of the specific sections. However, many of the relevant terms in this bill already exist in California law, and are already well understood by the bench and bar. Thus, this bill seemingly makes few substantial changes to California privacy law other than extending the existing framework to new drone technology. Adding to the idea that Mr. Chau’s AB 2306 does not significantly change the underlying privacy law is the fact that, unlike Mr. Gorell’s bill, AB 2306 did not receive any official opposition.
The Constitutional deadline for Gov. Brown to take action on either of these bills is September 30. If signed, the new laws would take effect January 1, 2015.