Privacy prevails at state Capitol

Californians can thank their Legislature and Gov. Jerry Brown for enacting a number of new laws that will serve to protect personal privacy in this era of rapid technological change. The bills signed into law - all of which become effective on Jan. 1, 2015 - promise to curb the use of drones to capture private activities, enhance the penalties for stalking and harassment, limit the scourge of revenge pornography and curtail "mug shot" removal extortion.

Drones

For more than a decade, unmanned aerial vehicles (aka drones) have been deployed by the military in various conflict zones around the world; their use has by now become commonplace in overseas battlefields. And though most all commercial uses of drones in the U.S. remain banned by the Federal Aviation Administration, six aerial production companies recently secured limited operator exemptions for "on set" use when filming motion pictures and television programs. But the broader domestic use of drones, by both public and private entities, is a topic of intense debate. In the last legislative session, two bills that sought to limit the use of drones made it to the governor's desk.

Assembly Bill 2306, by Assemblymember Ed Chau (D-Arcadia), signed into law Sept. 30, broadens the so-called "constructive trespass" statute found in Civil Code Section 1708.8. That law currently reaches only the recording of private personal or familial activities by means of a "visual or auditory enhancing device" - e.g., a telephoto lens or parabolic microphone. By removing the words "visual or auditory enhancing," AB 2306 targets "[any] device," including drones, that might be used to monitor individuals inside their homes or in other private areas. As Chau observed, "As technology continues to advance and new robotic devices become more affordable for the general public, the possibility of an individual's privacy being invaded substantially increases."

On the other hand, thanks to significant opposition from the law enforcement community, Brown vetoed a second anti-drone bill, AB 1327, by Assemblymember Jeff Gorell (R-Camarillo). This legislation would have prohibited public agencies generally from using or contracting to use drones, and specifically would have required law enforcement authorities to obtain warrants for such use except in certain emergency situations where, for example, "there is an imminent threat to life or of great bodily harm," for firefighting or responding to environmental disasters. In his veto message, Brown claimed that AB 1327's exceptions were "too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution." Gorell retorted, "We're increasingly living in a surveillance society as the government uses new technology to track and watch the activities of Americans. It's disappointing that the governor decided to side with law enforcement in this case over the privacy interests of California." Given the overwhelming margins by which AB 1327 passed the Assembly and Senate, Gorell also warned Brown that the next session might see legislation seeking a complete moratorium on drone use, as states such as Virginia have imposed.

Stalking and Harassment

Following enactment of last year's celebrity-backed Senate Bill 606, by incoming Senate President pro Tem Kevin de Leon (D-Los Angeles), a bill that substantially enhanced the criminal penalties and created a civil remedy for harassing the children of high-profile individuals, Brown this year approved two additional bills that may further curb the conduct of aggressive paparazzi.

AB 1356, by Assemblymember Richard Bloom (D-Santa Monica), amends the existing stalking statute, Civil Code Section 1708.7, by including conduct intended to put the plaintiff "under surveillance" at his or her "school, place of employment, vehicle or residence." Given the number of photographs of celebrities appearing in gossip magazines that are taken with telephoto lenses, it would seem that such "surveillance" is integral to modern paparazzi activity. Plaintiffs will still be required to prove additional elements to satisfy the "stalking" definition - including a "pattern of conduct" leading to a reasonable fear for safety or to the incursion of substantial emotional distress. However, AB 1356 is another statutory arrow in the quiver of celebrities in their continuing fight against the paparazzi.

Brown also signed Bloom's AB 1256, a bill that adds a new Civil Code Section 1708.9 rendering actionable the use of force, threat of force, or violent physical obstruction to attempt to or actually "injure, intimidate, or interfere with, any person attempting to enter or exit" a public or private school, hospital or other health facility. This law could conceivably benefit those outside of the public eye as much as those in it. While the spotlight may fall on celebrities leaving or collecting their children at school, AB 1256 should also protect private individuals - particularly those who work at locations or businesses that are the subject of controversy or protest. However, attempts to enforce this statute likely will have to address the possibility of fallout from this term's unanimous U.S. Supreme Court decision in McCullen v. Coakley, 2014 DJDAR 8317 (June 26, 2014) (Massachusetts' "buffer zone" statute violates the First Amendment).

Revenge Pornography

Revenge pornography, generally defined as the nonconsensual online publication of explicit images by former romantic partners in retaliation for a breakup or other dispute, is one of the Internet's hottest topics. Proprietors of now-inactive websites such as "IsAnyoneUp" and "UGotPosted" have been subjected to criminal investigations and arrests. In response, the state Legislature passed two bills, both of which were signed into law by Brown Sept. 30, that attempt to further curtail the revenge porn phenomenon.

SB 1255, by Sen. Anthony Cannella (R-Ceres), amends Penal Code Section 647 that governs disorderly conduct. This measure strengthens the statute by permitting the prosecution of a defendant who should have known (as opposed to did know) that the subject of the intimate images did not consent to their distribution; it also accounts for the fact that such images may have been taken by the subject (i.e., selfies). These amendments are particularly timely in the wake of the recent widespread distribution of photographs from hacked celebrity telephones. SB 1255 retains the requirements that a victim show "serious emotional distress" and that the perpetrator knows or should know that the image's distribution will cause such distress.

AB 2643, by Assemblymember Bob Wieckowski (D-Fremont), is a civil counterpart to SB 1255. It adds Civil Code Section 1708.85 that creates a private right of action for revenge porn victims to sue their perpetrators for distributing intimate images. A cause of action lies where the victim suffers "general or special damages as described in Section 48a." Unlike SB 1255, AB 2643 dispenses with the need to prove any form of emotional distress. Wieckowski explained that an expedited pathway for relief was the goal of his legislation. "Rather than having to argue in court on the grounds of invasion of privacy [or] intentional infliction of emotional distress ... lawyers can now pursue relief by directly showing the images were sent without the consent of the victim. It is more direct and aims to help women remove the images out of the public eye as soon as possible."

Both bills are welcome additions to California law, signaling a bipartisan effort to keep pace with modern technology and the challenges it continually presents.

Booking Photos

Finally, SB 1027, by Senator Jerry Hill (D-San Mateo), signed into law by Brown Aug. 15, prohibits websites from posting police station booking photos (aka "mug shots") and then charging hundreds or thousands of dollars to take them down. The bill creates a new Civil Code Section 1798.91.1 that makes it unlawful to solicit or accept payment to remove, correct or modify mug shots. Statutory damages of $1,000 per violation or actual damages are available to the plaintiff. "These shakedowns must stop," said Hill. "We are all accountable for our own behavior, but these businesses aren't about accountability - their practices amount to extortion."

Conclusion

The just-concluded legislative session meaningfully enhanced the cause of personal privacy in California. As disappointing as Brown's veto of AB 1327 may have been to civil rights and civil liberties advocates, it will come as little surprise to the law enforcement community if even more aggressive anti-drone legislation is introduced in the next session. On balance, however, privacy advocates have to be pleased with the raft of other bills that emerged from the legislature and received gubernatorial approval. All eyes will now turn to the criminal and civil actions that may be brought to enforce these new laws.