Lorraine Reich: Gov. Brown has our back, or does he?
November 5, 2015
Gov. Jerry Brown recently signed law to expand privacy protections from operators flying drones over private property.
The bill, AB 856, authored by Ian Calderon, D-Whittier, revises the civil code definition of a "physical invasion of privacy" to include capturing photos or videos with a drone by flying over someone's land or property.
The new law, directed at protecting celebrities from publicity drones, does not create a new crime but calls for only civil penalties and damages. To prove a violation it is necessary to prove the operator (1) knowingly flew over the airspace of another person without permission; (2) took photos or videos; and (3) causes damages. "Damages" can mean the commercial exploitation of the images collected. You'll have to hire a lawyer, find the perpetrator, determine the damages and sue.
Surprisingly, Gov. Brown vetoed several more drone bills this year, including two by our Sen. Gaines which would have made it unlawful to fly over prison yards and public schools. He also vetoed a bill intended to prevent interference with firefighting aircraft despite support by firefighters who have faced a rash of problems due to drones interfering with fire suppression activity. Brown's reasoning for vetoing these drone bills was that California already has 5,000 crimes on the books, and he was unwilling to create more crimes.
We remain concerned about the influx of surveillance technologies across California without sufficient civil liberties protections being put into place by our lawmakers, and without any community input.
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On the matter of government or law enforcement use of drones, despite the 2012 federal mandate that states pass law to integrate and regulate the use of drones by 2015, the state legislature has failed to pass comprehensive bills on drone operations to date. Last year Gov. Brown vetoed AB 1327 which would have prohibited law enforcement from using drones from capturing photos or intercepting cell-phone communications without obtaining a warrant. AB 1327 would also have required the local legislative body, in approving the acquisition or purchase, to adopt policies governing the use and deployment of the unmanned aircraft system. Gov. Brown vetoed this bill stating, in his view, the new law was more restrictive than that which is required under the Fourth Amendment.
In apparent response to that vetoing message, this year the Senate processed SB 262, which authorized the use of drones by law enforcement provided they complied with federal and state constitutional protections against unreasonable searches, but that bill was withdrawn before reaching the assembly.
On the other hand, and to his credit, Gov. Brown recently approved the American Civil Liberties Union co-sponsored bill, SB 178 the "California Electronic Privacy Act." This new law which goes into effect in 2016 requires police to get a warrant before accessing electronic communications information or electronic device information, such as information from cell phones and location tracking devices. It also requires warrants to access metadata from electronic service providers.
Unfortunately, SB 741 and SB 178 do not address the use or misuse of drones by law enforcement, which is yet to be legislated.
We remain concerned about the influx of surveillance technologies across California without sufficient civil liberties protections being put into place by our lawmakers, and without any community input. The benefits and costs to the public of such machinery as the tank-like MRAP, or surveillance devices such as the sting-ray, or drones should be thoroughly evaluated prior to making decisions on acquisitions such as these to ensure public safety and privacy rights, yet giving government the tools they need to carry out their duties.
Are you concerned about your privacy rights? Join your local ACLU at the upcoming general meeting from 1 to 3 p.m. Saturday at the Peace Lutheran Church in Grass Valley. For more information, visit ACLU-NS on Facebook.
Lorraine Reich lives in Grass Valley.