Update from California: (Almost) All’s Quiet on the Western Front

Posted by Steven Miller on Sep 25, 2017 in California Law | 0 comments

Here in California, 2017 has been a very quiet legislative session with regard to drone law. Prior years have seen many attempts—many unsuccessful—to regulate drone use in a variety of ways.  The current legislative session ended on September 15 with only a single drone-related bill passed by the legislature.  AB 527 (Caballero) will make modest revisions to existing law regarding licensure requirements for those who operate pest control aircraft. The Bill’s author, Anna Caballero, represents the 30th assembly district, which includes the Pajaro and Salinas valleys—both major agricultural areas. If the Governor signs AB 527 any person operating an unmanned aircraft in pest control will need to be certified to do so by the California Department of Health—this certification is an expansion of the procedures already in place for those who conduct pest control operations using manned aircraft. The certification process does not appear to be onerous, but will certainly require more training and expertise than the current unregulated legal landscape.

This bill reflects the increased use of drone technology in the agriculture industry and is yet another example of the law trying to catch up to fast-growing technology in the drone field. This trend will only continue as the industry continues to innovate and find new ways to make use of drone technology. The Governor has until October 15 to sign or veto AB 527. Inaction means the bill becomes law.

To Permit or Not to Permit

Posted by Steven Miller on Mar 6, 2017 in California Law | 0 comments

In the early days of commercial drone use—say two years ago—most local government agencies took a prescriptive approach to done operation in their jurisdictions.  Many cities and even State agencies adopted blanket prohibitions against drone use—or at least against drone use in specified areas.  Now agencies more and more are asking themselves whether such broad prohibitions are practical, enforceable, or even necessary.  As a result, permitting mechanisms are beginning to spring up.  So far, permitting requirements for compliance are often very stringent.  Some jurisdictions are following the model of the California Department of Transportation (Caltrans).  Caltrans requires the following—even if it grants a permit in the first instance—as a condition of granting a filming permit over Caltrans streets or highways.

• Drone filling must be over a closed set.
• The radius constituting the mandatory closed set must include 500-feet beyond any point of the roadway.
• Drone pilots (with the approval of Caltrans) may decrease the perimeter of the closed set only if barriers or structures are present that would sufficiently protect nonparticipating persons from the Drone and/or debris in the event of an accident.
• Traffic Control will be enforced from both directions.
• Filming may be required to occur in very short intervals—1-3 minutes—to minimize traffic interruptions.
• Productions must work with all applicable city jurisdictions to facilitate the closing of all relevant over-crossings and under-crossings during filming with a Drone.
• If the road to be closed for Drone filming is adjacent to a beach or park, permission must also be granted from the Park’s film liaison.

These restrictions make sense, but do mean that a small-scale drone video shoot may take on some of the characteristics of a bigger budget Hollywood movie.  Don’t forget Craft Services!

An Update on Commercial Drone Law in California (Video)

Posted by Steven Miller and Nicole Witt on Jan 5, 2017 in California Law | 0 comments

In 2016, the California legislature sent six bills to the governor, who signed two and vetoed four.

The two bills are:

1. AB1680 – Makes it a misdemeanor to interfere with first responders or emergency personnel at the scene of an emergency
2. SB807 –  Protects emergency first responders from liability for damage to a drone that is interfering with the responder’s ability to provide emergency service

Also, the Federal Aviation Administration (FAA) has released its final rule on commercial drone operation, which may affect any state laws and local ordinances.

New California Drone Law!

Posted by Steven Miller on Sep 30, 2016 in California Law | 0 comments

On September 1, we updated you on the six bills passed by the California legislature by the end of the 2016 legislative session. With only hours to spare, Governor Brown has signed two of the six into law, and has vetoed four. Along with the issuance of the FAA rule earlier this year, there is finally the beginnings of a body of law governing the use of commercial and recreational drones in California.

The two bills signed into law are SB 807 and AB 1680.

SB 807 amends the Civil Code to limit the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services. The bill applies to public and private entities and to persons regardless of whether they are paid or volunteer. One of the more frequent questions I am asked from public agencies is “Is a firefighter liable if he knocks down a drone that is in his way while fighting a fire?” As of January 1, 2017, there is now an answer to this question—“No!.”

AB 1680 amends the Penal Code to add drone operators to the existing requirement that no person may stop at the scene of an emergency, unless as part of their job, and interfere with emergency personnel in the performance of their duties. Violation is a misdemeanor. Interesting, while the pre-existing law focuses on persons who are physically at the scene of an emergency, AB 1680 now criminalizes interference regardless of the drone operator’s location so long as the drone itself is at the scene of the emergency. Another frequent question I am asked is “How do I stop someone whose drone is interfering with firefighters?” As a result of AB 1680, law enforcement may be able to cite a drone operator who interferes with emergency personnel in the performance of their duties.

The Governor vetoed AB 1662, AB 2148, AB 2320, and AB 2724.

AB 1662 would have required the operator of a drone that is involved in an accident resulting in injury or damage to a person or property to immediately land the drone in the nearest safe place. The operator must then either: 1) present valid ID to the injured person, 2) locate the owner of the damaged property and present valid ID if requested, or 3) leave a note with the name and address of the operator and the circumstances of the incident in a conspicuous place on the damaged property and notify the police. This requirement would not apply to law enforcement personnel acting within the scope of their employment or to anyone authorized by the FAA.

In his veto message, Governor Brown emphasized the need for a comprehensive approach to drone regulation and stated that “Piecemeal is not the way to go.”

AB 2148 would have made it unlawful for any person to operate a drone over lands or waters managed by the Department of Fish and Wildlife and the Department of Parks and Recreation unless authorized by those agencies. The bill would also have made it illegal to use a drone to catch fish or other wildlife.

In his veto message, Governor Brown stated the law was unnecessary because the departments had authority to promulgate their own regulations without the need for statute.

AB 2320 would have applied drone use to existing law regarding “stay-away” orders.

In his veto message, Governor Brown stated that current law was sufficient to prosecute the operation of a drone in a manner that violates a protective order.

AB 2724 would have required drones to include geofencing capability to prohibit the drone from flying within any area prohibited by local, state, or federal law. It also would have required all drone owners to procure insurance—potentially sparking a new drone-insurance industry that is developing any way. Had it been signed by the Governor, this bill could have had a profound effect on the drone industry and on drone use in general.

In his veto message, Governor Brown stated that the bill would have created “significant regulatory confusion” and would likely be preempted by federal law. He emphasized the need for comprehensive regulations and again stated that “Piecemeal is not the way to go.”

California Legislature Sends Six Drone Bills to the Governor’s Desk

Posted by Steven Miller and Nicole Witt on Sep 1, 2016 in California Law | 0 comments

With the end of the legislative session, the California legislature sent the following six bills to the Governor’s desk:

• AB 1662
• AB 1680
• AB 2148
• AB 2320
• AB 2724
• SB 807

Most of these bills criminalize non-compliance with the law and either create a new crime or expand the scope of an existing crime. Interestingly, just last year, the Governor vetoed a number of bills, including three drone related proposals, because the bills created a new crime and, the Governor observed, “[t]his multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.” It seems the Legislature is sending the Governor a message that certain drone related conduct requires a criminal penalty and should be proscribed by the State.

Additionally, some of the bills sent to the Governor this year touch on similar concerns addressed by the Legislature last year, including impeding the work of emergency personnel. While it is unclear how the Governor will act on these proposals, it is evident that the Legislature is undeterred by the Governor’s rejection of past drone related legislative proposals.

Update on California Drone Bills

Posted by Steven Miller and Nicole Witt on Jun 23, 2016 in California Law | 0 comments

A large number of drone-related measures are presently working their way through the California legislature. In light of the FAA’s recently published final rule on drone use and operation, many of these measures may be subject to further amendment—up until a deadline of August 19, 2016. But the following is brief summary of the status of all California drone-related bills as of June 22, 2016:

AB 1662 would require a drone operator to follow the same requirements as a vehicle operator following an accident that results in the injury to another. AB 1662 would require that after an accident involving a drone, a drone operator would have to immediately land the drone and provide certain identifying information to the injured individual or the owner of damaged property. This bill passed the Assembly and was referred to committee in the Senate.

AB 1680 would make it a misdemeanor for a person to use a drone to interfere with the duties of law enforcement or other “first responders.” AB 1680 simply adds drone operators to the existing requirement that no person may stop at the scene of an emergency, unless as part of their job, and interfere with emergency personnel in the performance of their duties. This bill passed the Assembly and was referred to committee in the Senate.

AB 1724 would require anyone operating a drone to place identifying information or digitally store the information on the drone and would impose a fine of up to $2,500 for failure to so identify the drone. This bill is in committee. Its first hearing was cancelled at the author’s request.

AB 1820 imposes restrictions on a law enforcement agency’s use of drones. Before any use, the law enforcement agency would need to develop and make available to the public a policy on the use of drones, and train its staff on such a policy.   Even with such a policy in place, AB 1820 would require that a law enforcement agency could only use a drone if it obtains a search warrant, absent exigent circumstances. Finally, AB 1820 would require that all images or data obtained by use of a drone be destroyed within one year, with certain exceptions. This bill passed the Assembly and was referred to committee in the Senate.

AB 2148 would require the Department of Fish and Wildlife and the Department of Parks and Recreation to develop regulations for the use of drones over the lands managed by each department in order to protect wildlife and sensitive species. This bill passed the Assembly and is currently in committee in the Senate.

AB 2320 was a twin to SB 808 before it was amended. It applies to anyone subject to a stay-away order (for example a restraining order arising out of domestic violence). AB 2320 would prohibit such a person from using a drone to fly within the prohibited distance specified in the protective order or from capturing images of the other person using a drone. The bill also permits a judge to prohibit a person required to register as a sex offender from operating a drone if the judge finds it is in the public interest to do so. Lastly, this bill contains non-binding language of legislative intent to prohibit a person from flying a drone within 250 feet of any critical infrastructure in order to gather information or photographs of the facility. This bill passed the Assembly and is in committee in the Senate.

AB 2724 would amend the Civil Code to include the requirement that drones sold in California include a copy of FAA safety regulations, as well as a notice of the requirement to register the drone with the FAA. AB 2724 would also require that any drone with gps capability also be equipped with geofencing software that would prohibit the drone from flying within 5 miles of an airport. Finally, AB 2724 would require owners of drones to buy liability insurance. This bill passed the Assembly and was referred to committee in the Senate.

SB 807 would limit the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services.   The bill broadly applies to public and private entities, and to persons regardless of whether they are paid or volunteer.   This bill passed the Senate and the Assembly Committee on Privacy and Consumer Protection. The bill is currently in the Assembly Judiciary Committee.

SB 808 was a twin to the original draft of AB 2320. It applies to anyone subject to a stay-away order (for example a restraining order arising out of domestic violence). SB 808 would prohibit such a person from using a drone to fly within the prohibited distance specified in the protective order or from capturing images of the other person using a drone. This bill was referred to committee in the Senate.

SB 809 would prohibit the operation of a drone in the airspace over a public school (K-12) without the written permission of the school principal. This bill was referred to committee in the Senate.

SB 810 would make it a misdemeanor, punishable by up to 6 months in jail and/or $5,000, to operate a drone in a manner that interferes with efforts of firefights to control, contain, or extinguish a fire. This bill was referred to committee in the Senate.

SB 811 would make it a misdemeanor to operate a drone on or above the grounds of a state prison or a jail without prior permission from the Department of Corrections and Rehabilitation or the county sheriff. This bill was referred to committee in the Senate.

SB 868 would prohibit the operation of a drone within 500 feet of “critical infrastructure” designated by the Office of Emergency Services. It would also prohibit operation of a drone within the airspace above most state offices in Sacramento, above a state park, or above any airspace over land or water managed by the Department of Fish and Wildlife, with limited exceptions. This bill passed the Senate and was referred to committee in the Assembly.

SB 1246 would require pest control businesses and government agencies conducting pest control activities, to notify the public at least 7 days before administering pesticides by drone over a residential area. This bill is in committee in the Senate.

California Legislative Update

Posted by Nicole Witt on Jan 20, 2016 in California Law | 0 comments

It appears that members of the California Legislature are undeterred by the Governor’s decision to veto all drone related bills but one at the end of last year. In the first few weeks of January, members of the Legislature have introduced, reintroduced, and amended a number of drone related bills. Interestingly, in what appears to be an effort to address federal preemption concerns, most of the bills include a provision specifying that the bill does not apply to drone use authorized by the FAA or does not conflict with federal law. Below is a summary of the bills that have recently been introduced.

AB 1680, expands the prohibition against a person going to or stopping at the scene of an emergency to watch emergency personnel if it impedes the work of emergency personnel to include people using or operating drones.

SB 811, appears to be an attempt to address the recent use of drones to drop contraband into prisons by prohibiting the knowing or intentional use of a drone on or over the grounds of a state prison or jail. This prohibition would not apply to prison or jail personnel acting in the scope of their employment or to any entity authorized by the FAA.

AB 1662, requires the operator of a drone that is involved in an accident resulting in injury or damage to a person or property to immediately land the drone in the nearest safe place. The operator must then either: 1) present valid ID to the injured person, 2) locate the owner of the damaged property and present valid ID if requested, or 3) leave a note with the name and address of the operator and the circumstances of the incident in a conspicuous place on the damaged property and notify the police. This requirement would not apply to law enforcement personnel acting within the scope of their employment or to anyone authorized by the FAA.

AB 14 was introduced last year but was recently amended to require owners and operators of drones that do not fall under the definition of “model aircraft” to either 1) mark the drone with the owner’s name, address, and telephone number, 2) store the same information on the drone in a digital format, or 3) mark the drone with the address of an website where the same information is listed. The markings may not modify or confuse any marks required by the FAA.

SB 809 is the reintroduction of SB 271 to prohibit the use of drones over school grounds.

Steve Miller on KPCC to Discuss Recent Drone Law in California

Posted by Troy Brophy on Oct 7, 2015 in California Law | 0 comments

Join our own Steve Miller as he discusses Governor Jerry Brown’s signing of AB 856 on Tuesday, and what it means that he did not sign other proposed legislation into law.

“Analyzing Governor Brown’s choice to sign one drone bill, not others”

(Listen online, starting 11:50 AM Pacific. Or listen to the recording.)

Governor Vetoes SB 142

Posted by Steven Miller on Sep 10, 2015 in California Law | 0 comments

SB 142, which would have prohibited flying a drone over private property, has been vetoed by Governor Brown. In his veto message the governor wrote “Drone technology certainly raises novel issues that merit careful examination… This bill, however, while well-intentioned, could expose the novel hobbyist and the FAA-approved commercial user alike to burdensome litigation.” His veto came after intense opposition from the media industry, focused in part on uncertainties created by the measure’s use of a 350 foot ceiling for prohibited flight. There are still other drone bills pending so stay tuned for more legislative action in the very near future.

California Legislative Action

Posted by Steven Miller on Sep 1, 2015 in California Law | 0 comments

California lawmakers on Monday approved two bills that, if signed by the Governor, will regulate drone use in California. SB 142 would make it a crime to fly a drone less than 350 feet above private property without permission. The 350 limit represents a balance between those who think the limit should be 400 feet to avoid preemption by FAA regulations and those who argue that a better limit would be 200 feet to allow drone operators more flexibility to operate below 400 feet—for instance to develop drone delivery capability.  SB 142  carves out an exception for “otherwise lawful activities” of law enforcement personnel or government agencies.

AB 856 is a so-called “anti paparazzi” law. It expands existing liability for invasion of privacy to include a person who knowingly enters into the airspace above the land of another person without permission in order to capture a visual image or sound recording of the person “engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.” The new law, if signed by the Governor, provides for the imposition of damages, including punitive damages, for commercial use of any recorded images that result from an invasion of privacy.

Los Angeles is paying attention to commercial drones

Posted by Steven Miller on Sep 1, 2015 in California Law | 0 comments

On August 28, 2015, the Los Angeles City Council unanimously tasked its City Attorney with drafting an ordinance to regulate the use of drones within five miles of any airport.  Perhaps more significantly, the Council called for an ordinance that would prohibit the operation of a drone “in a careless or reckless manner.  You can find the Council’s recommendation here.  The City is part of a growing movement of local agencies looking for ways to regulate, and prohibit, private drone use within its jurisdiction.  Whether sports stadiums, airports, or critical infrastructure, there is a growing movement that seeks to blur the distinction drawn so far by the FAA between commercial and non-commercial use.  At the federal level, this movement finds its voice in the Senator Feinstein’s proposed “Consumer Drone Safety Act” which would impose restrictions on non-commercial use of drones, including a requirement for geo-fencing or other collision avoidance technology.

Update #2 on California Legislative Action on Drone Use

Posted by Steven Miller on Aug 20, 2015 in California Law | 0 comments

We just blogged about AB 56, wending its way through the California Legislature. SB 142 is also not without controversy.  This measure, which was originally drafted as an anti-paparazzi statute, incudes a prohibition against use of drones less than 350 feet above ground level of private property.  The Consumer Electronics Association has sent a strongly worded letter of opposition, published here, asserting that the 350 foot rule is arbitrary and would unleash a wave of litigation, including on federal preemption and constitutional grounds.

The deadline for passing AB 56 this year is September 11, 2015.

Update on California Legislative Action on Drone Use

Posted by Steven Miller on Aug 20, 2015 in California Law | 0 comments

We wrote last year that 2015 would be a critical year in the development of drone law in California. We continue to monitor the three bills that are wending their way through the legislative process: SB 142, SB 271, and AB 56. AB 56 appears to be the most controversial at this point—you may recall that the bill’s original intent, still preserved, is to allow for use of a drone by law enforcement—so long as such use complies with the Fourth Amendment (i.e. a warrant is obtained as necessary and applicable). In the last week, largely in response to privacy concerns, and in particular those expressed by the ACLU, the bill has been amended in a number of ways that might increase its chances of passage, although perhaps at the risk of creating legal ambiguities while resolving political stumbling blocks.

First, at the most general level, the statute now allows use of a drone by law enforcement only when such use complies with the “protection of the inalienable right of privacy guaranteed by the California Constitution.” More specifically, any law enforcement agency that uses a drone must keep records of such use, including whether or not it sought a warrant and if the warrant was granted. In addition, the law enforcement agency must develop a policy that demonstrates how the “collection, use, maintenance, sharing, and dissemination” of information and data gathered through the use of a drone is “consistent with respect for an individual’s privacy and civil liberties.” The policy must also specify the circumstances under which a done may and may not be used, including time requirements, training requirements for authorized employees, and other restrictions. Finally, the policy must prohibit the use of a done solely for the purpose of monitoring activities protected by the First Amendment or “the lawful exercise of other rights secured by the United States Constitution, the California Constitution, and federal and state law. The policy shall also prohibit the use of a drone system to engage in discrimination on the basis of race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity.”

These provisions might appear to be aspirational and difficult to enforce. But the statute as amended now creates a civil right of action against any person who knowingly violates the statute—including both the policy requirements as well as the underlying prohibition against use that violates the Fourth Amendment. The statute provides for punitive damages and attorneys’ fees in addition to any actual damages. It is not difficult to imagine litigation alleging that use of a drone violated an individual’s privacy rights, not to mention Fourth Amendment rights.

If the bill passes as currently drafted, law enforcement agencies will need to be extraordinarily careful that use of a drone does not implicate the privacy rights now protected by the statute. September 4 is the last day to amend a bill, and all bills must be passed by September 11. So we will know soon whether and how California drone law has changed.

Legislative Update

Posted by Steven Miller on Jun 26, 2015 in California Law | 0 comments

AB 56, written about in a June 20 blog post, was significantly amended by its authors on June 24, 2015.  As originally written, the bill would have significantly limited local government’s use of drones for non-law enforcement purposes.  As amended, it is now limited only to drone use by law enforcement and no longer contains the requirement that any local agency provide public notice before using a drone for any purpose whatsoever.   AB 56 continues to require that a law enforcement agency obtain a warrant before using a drone to surveil private property.  The bill, as amended, is schedule for a hearing before the Senate Public Safety committee on July 7, 2015.

Senator Feinstein Wants to Regulate Non-Commercial Drone Use

Posted by Steven Miller on Jun 22, 2015 in California Law | 0 comments

Senator Diane Feinstein wants to close what she describes as a “loophole” in current efforts to regulate commercial drone use.  The loophole is the entire distinction between commercial and non-commercial use.   In particular to protect public infrastructure like airports, power plants, and bridges, Senator Feinstein last week proposed legislation that would expand the FAA’s pending regulation of commercial drones to include non-commercial use.

The Senator’s proposed bill would require the FAA to develop rules for both recreational drone flight and the manufacture of the devices. In its flight regulations, the agency would have to set a limit on maximum altitude, restrictions on where the devices can be flown and prohibitions related to weather and time of day. For the manufacturing rules, the FAA would have to bar manufacturers from making drones that can fly beyond a certain altitude, require the installation of sensors or software to avoid collisions and mandate systems to prevent drones from being flown close to airports and other protected airspace, among many other stipulations.

Why Only Regulate Commercial Drone Use?

Posted by Steven Miller on May 6, 2015 in California Law | 0 comments

Last week, I blogged on the fuzzy distinction between commercial and non-commercial drone use. This issue is of particular concern to Senator Feinstein, who is considering introducing a bill she is calling the Drone Safety Act.  In testimony on April 22 before the Transportation, Housing, and Urban Development subcommittee, the Senator expressed concern that non-commercial drone use “could also be a safety risk in untrained hands and this is a gap in the legislative authority of the regulatory agency that prevents FAA from regulating drone manufacturers if their drones might be used for recreational purposes.”  Among other things, Senator Feinstein is interested in requiring that drones come with “geo-fencing” technology pre-installed so that drones are automatically prevented from flying over specified areas—for instance security-sensitive infrastructure.

Senator Feinstein’s measure, if introduced, is likely to require FAA certification for any private drone use, and would obliterate the distinction between commercial and non-commercial use.  It would also provide the FAA with additional enforcement authority.

This issue may be of particular concern to municipalities and local agencies exploring the limits to their authority to regulate drones flying in their airspace (see the Golden Gate Bridge’s concerns on this issue here).  Applying traditional concepts of trespass to drone flight may be difficult under State law.

The Wild West of Commercial Drones – Why 2015 Could Be a Pivotal Year in California

Posted by Steven Miller on May 5, 2015 in California Law | 0 comments

Article by Steven Miller and Nicole Witt,  published in the spring edition of Public Law Journal.

Please click here to read the full article (PDF).

Reprinted with Permission of the State Bar of California

Legislative Update: California Drone Legislation

Posted by Nicole Witt on Apr 17, 2015 in California Law | 0 comments

This year, California legislators have introduced a number of bills related to drone use. The following is a brief update on legislative action taken on these proposals.

SB 142, introduced by Senator Jackson, would prohibit the use of drones over private property without permission. The proposal passed out of the Senate Committee on Judiciary with amendments to clarify that the bill applies to flying drones over real property. The bill moved to the Senate Floor for a third reading which precedes a floor vote.

SB 262, introduced by Senators Galgiani and Anderson, would condition law enforcement use of drones on compliance with State and Federal Constitutional protections against unreasonable searches and seizures and with California law related to the use of surveillance technology. The bill passed out of the Senate Committee on Public Safety and was re-referred to the Committee on Judiciary.

SB 271, introduced by Senator Gaines, would prohibit the use of drones over school grounds. The bill passed out of the Senate Committee on Public Safety and was re-referred to the Committee on Appropriations. Before passage, the bill was amended to provide an exception for drones used after school hours and with the permission of the school principal or other relevant authority. Additionally, the amended proposal provides that it is an infraction to use a drone to take photographs or other images of public school grounds during school hours and without the permission of the school principal. The bill was also amended to reduce the punishment for an infraction.

AB 14, introduced by Assembly Members Waldron, Brown, and Maienschein, and Senator Nielsen, would create a task force to advise the Governor in the creation of a comprehensive state policy related to drone use. The bill failed to pass out of the Assembly Committee on Transportation but the Committee granted reconsideration of the action. A number of amendments were made to the bill including the addition of provisions highlighting California’s unique position and need for drone use related to aviation, aerospace, high technology, agriculture, and public safety. The protection of privacy was also stricken from the specific objectives of a comprehensive state policy.

AB 56, introduced by Assembly Members Quirk and Campos, would limit the use of drones by law enforcement and public agencies. The proposal passed out of the Assembly Committee on Public Safety and was re-referred to the Committee on Privacy and Consumer Protection. This bill is very similar to AB 1327 which was passed by the Legislature and vetoed by the Governor in the last legislative session. AB 56 was amended to require that notice or guidelines must be made available to the public prior to the use of drones by law enforcement agencies. The amended bill also provides that police are permitted to use drones over public lands, highways, and open spaces without first obtaining a warrant.

Legislators Ask, Is California Law Ready for Drones?

Posted by Nicole Witt on Mar 1, 2015 in California Law | 0 comments

Two days after the FAA released its proposed rule to regulate commercial drone use in the United States, the California Senate Judiciary Committee held an oversight hearing to examine the potential benefits and risks associated with the expansion of drone technology. The hearing was entitled, “Drones: Is California Law Ready? The Potential, the Perils, and the Impact to Our Privacy Rights.”

Senator Hannah-Beth Jackson (D-Santa Barbara), the Senate Judiciary Committee Chairwoman, suggested the expansion of drone technology presents difficult public policy questions including, “how to welcome these new technologies into our lives without surrendering our right to privacy?” Senator Jackson inquired into existing state-level regulation of commercial drone use across the nation, how unauthorized drones might impact fire-fighting efforts, and whether the leaders in drone technology innovation are considering issues of safety and privacy. Senator Jackson suggested that, in considering the regulation of drone use, critical questions might be, where are drones benefiting society and where are they not? Additionally, Senator Jackson stated that she believes the express right to privacy in the California Constitution gives California the authority to go beyond any steps taken by the federal government to protect privacy rights as implicated by expanding drone use.

Senator Joel Anderson (R-San Diego) submitted that, in regulating drone use, care should be taken in achieving the right balance in order to ensure that technology is not being unreasonably restricted. The Senator drew a comparison between emerging drone technologies and street mapping, as both encountered a tension between privacy concerns and commercial benefits. Senator Anderson asked the witness from the Motion Picture Association about the cost, quality, and safety of using manned versus unmanned aerial vehicles in the film industry. Lastly, the Senator asked about the use of drones in quantifying the effects of global warming and in the exploration of active volcanoes. During his time, Senator Bill Monning (D-Carmel) asked whether drones could be used for dropping fire retardant and whether drones are being used to apply pesticides.

The direction of legislators’ comments and questions highlights the potential risks and benefits of drone use in California and emphasizes the great uncertainty that exists in the landscape of drone regulation today. Watch the full Senate Judiciary Committee hearing here.

New FAA Proposed Rule Does Not Slow California Lawmakers’ Efforts to Regulate Drone Use

Posted by Nicole Witt on Feb 21, 2015 in California Law | 0 comments

On February 15, 2015, the FAA released its proposed regulations on commercial drone use entitled, “Operation and Certification of Small Unmanned Aircraft Systems.” Just days following the release of the proposed rule, two new bills were introduced in the California Legislature related to drone use and the California Senate Judiciary Committee held an oversight hearing related to the benefits and risks of drone use in California.

During the committee hearing, Senate Judiciary Chairwoman Hannah-Beth Jackson (D-Santa Barbara) stated that she was pleased the FAA has issued its much delayed proposed regulation but noted that State lawmakers should not wait for Washington to act. Rather, the emergence of drone technology raises important issues of state law including questions of property law and privacy rights. See Senator Jackson’s entire opening statement.

Four days after the FAA issued its proposed rule, Senator Gaines (R-Roseville) introduced SB 271 which would make it an infraction to operate a drone on or above a school with K-12 students. The bill provides for fines of up to $150 for the first infraction and up to $500 for subsequent infractions.

On February 18, 2015, Senators Galgiani (D-Sacramento) and Anderson (R-San Diego) introduced SB 262 which specifically authorizes law enforcement use of drones so long as the use complies with Constitutional protections against unreasonable searches and California law regarding law enforcement use of surveillance technology.

While it is still unclear what preemptive effect the FAA’s rulemaking will have, it appears that California lawmakers are not waiting to find out and are moving ahead to address  issues raised by the expansion of drone technology.

A Drone as Extension of Its Operator

Posted by Steven Miller on Feb 10, 2015 in California Law | 0 comments

Should homeowners be allowed to exclude drones from airspace above their property? Does it matter if the drone is flying ten feet above the ground or 100 feet above the ground? Clearly, homeowners can not prohibit airplanes from flying overhead—federal law authorizes flight within “navigable airspace,” usually defined as above 400 feet. Just as clearly, property owners can prohibit trespassing on the surface of their land. But there is presently no legal clarity as to property rights in the airspace in which a commercial drone traditionally operates. SB 142 (Jackson), introduced on January 26, 2015, prohibits the unauthorized use of unmanned aerial vehicles in airspace directly over private property but below the 400 foot altitude clearly regulated by the FAA. “If a drone invades your private property, it is an extension of the person sending the drone,” said Sen. Hannah-Beth Jackson.

California UA Task Force and 400′ No-Fly Ceiling

Posted by Steven Miller on Jan 27, 2015 in California Law | 0 comments

So far, three measures concerning commercial drone use have been introduced in the current legislative session. AB 14 (Waldron) would create the Unmanned Aircraft Task Force. The task force would be responsible for formulating a comprehensive plan for state regulation of unmanned aircraft. The task force would be required to submit, among other things, a comprehensive policy draft and suggested legislation pertaining to unmanned aircraft to the Legislature and the Governor on or before January 1, 2018.

SB 142 (Jackson), introduced on January 26, 2015, prohibits the unauthorized use of unmanned aerial vehicles in airspace directly over private property but below the 400 foot altitude clearly regulated by the FAA. “If a drone invades your private property, it is an extension of the person sending the drone,” said Sen. Hannah-Beth Jackson.

Finally, Assembly member Campos has reintroduced a measure similar to one vetoed by the Governor in the last legislative session that would specify warrant requirements for law enforcement seeking to use drones. Assembly member Campos stated, “drones are here to stay and my bill will be a vehicle for finding the right balance.” It may be that without the context of a pending election, the Governor will sign the measures should either of them be presented to him. We will track the progress of these bill and report on any new developments.

California State Regulation of Drones

Posted by Steven Miller on Dec 13, 2014 in California Law | 0 comments

In the 2013-2014 session, the California legislature adopted two bills concerning the commercial use of drones.  Only one of them survived the Governor’s veto.

AB 2306 is a modest expansion of existing privacy law that was signed into law by the Governor in September, 2014.  It clarifies that existing laws defining what is an invasion of privacy apply to images or sound recordings captured by a drone.  As of January 1, 2015, a person can be liable under existing invasion of privacy statutes if he or she uses a drone to capture a video or sound recording of a person engaging in activities in which the person has a reasonable expectation of privacy.  See Civil Code 1708.8.

AB 1327 was vetoed by the Governor on September 30, 2014.  This measure would have required a local law enforcement agency to obtain a warrant prior to use of a drone, subject to a number of exceptions.  The measure was generally opposed by law enforcement agencies, who object to a strict statutory warrant requirement and prefer to rely on the courts to apply more existing Fourth Amendment jurisprudence more flexibly to new technologies.   The California legislature has introduced bills in the current session that are functionally identical to AB 1327 in the hopes that the Governor will not veto the measure if presented it outside the context of an election campaign.

FAA Authorizations of Commercial Drone Use

Posted by Steven Miller on Dec 11, 2014 in California Law | 0 comments

This official FAA website lists the small but growing number of commercial firms that the FAA has authorized to operate drones in the United States. Most are in California.

The FAA claims authority to regulate commercial drone use, and has begun to issue “Section 333 Exemptions” pursuant to that authority.

Video: What You Should Know About Using Drones in California

Posted by Steven Miller on Nov 21, 2014 in California Law | 0 comments

Published on Law360, this video clarifies the current status of drones and their use in California.

(Note: A subscription is required to access Law360.)

Click here to view the video.