Amended legislation recently passed in California expanded the definition of “physical invasion of privacy” to prohibit paparazzi drones from trespassing on private property to obtain photographs or video footage of individuals. Under the updated California Civil Code Section 1708.8(a), “[a] person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another person without permission or otherwise committed a trespass in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a person or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.
Drones are “unmanned aerial vehicles” or “remotely piloted aerial systems,” which have been used by the military for tasks such as capturing visual surveillance, listening to cell phone conversations, or delivering missiles.
The advancement of drone technology has increased privacy concerns for California residents, especially celebrities who are targeted by paparazzi attaching cameras to drones to obtain photographs and video of them at their homes.
Celebrities such as Miley Cyrus and Kanye West have voiced their dissatisfaction with paparazzi drones invading their private property. In 2014, Miley Cyrus posted a video on Instagram of a paparazzi drone flying above her backyard. Kanye West expressed fear for his family’s safety, concerned that an inexperienced drone operator could cause physical injury to his young daughter, should the drone crash. However, privacy concerns regarding drones are not merely limited to celebrities. Reports of peeping drones hovering above Californians’ homes and lingering near windows caused residents to fear for their privacy.
Although the text does not specifically use the term “drone,” Section 1708.8(a) was amended to include the phrase “physically invade the privacy of the plaintiff,” extending liability to those who fly drones equipped with visual or audio surveillance measures to capture footage on private property. Before the bill’s passage, Californians were afforded protection in areas such as their backyard, where they possessed a reasonable expectation of privacy. The new legislation simply extends this reasonable expectation of privacy to the overhead sky, effectively prohibiting “the use of drones to cross over fences, bypass gates and travel into private sanctuaries in order to peer into windows, capture goings on and otherwise spy….”
The final bill’s text is indicative of legislators’ intent to protect residents’ privacy, without being restricted to a specific technology; instead generally prohibiting devices that “capture any type of visual image, sound recording, or other physical impression of the plaintiff…” Violators of the bill will be liable for up to three times the amount of any general and special damages proximately caused by the invasion of privacy. Additionally, punitive damages may be awarded in certain circumstances, and if the privacy invasion was “for a commercial purpose,” such profits must be disgorged to the plaintiff as restitution. Violators are also subject to a civil fine ranging from $5,000 to $50,000.
The new legislation is in harmony with the existing landscape of privacy in California, as the state is frequently the nation’s forerunner for privacy and data protection laws. For instance, California was one of the first states to include an express right to privacy in the state’s constitution, as well as the first state to enact data breach notification legislation.
While Governor Jerry Brown approved the new restriction on paparazzi drones, he has not supported other legislative attempts to place restrictions on the use of drones. The Governor previously rejected three drone-related bills that would have prohibited private citizens from flying drones over locations such as schools, wildfires, and prisons. Moreover, the Governor also vetoed legislation creating a trespassing violation when an individual flies a drone over another’s property without permission. In his veto message, Brown opined that such bill would create unnecessary new crimes. “[W]hile well-intentioned, [Senate Bill 142] could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action.”
As the Federal Aviation Administration predicts that at least 30,000 drones will be flying overhead from 2014 – 2019, restrictions are necessary to ensure that drone operators are not using the devices to snoop on individuals and invade their privacy, despite existing law. California’s amended Civil Code Section 1708.8 represents a narrowly tailored step in the right direction, balancing the privacy interests of Californians while permitting the use of new technology.