October 21, 2015 By Wallin & Klarich

A potential law regarding the use of drones in California was vetoed by Governor Jerry Brown, but the debate over drone laws continues. If passed into law, SB 142 would have banned anyone from flying drones over private property without permission.1

Governor Brown said the law would have unnecessarily exposed drone users to the legal system. Although this bill failed to pass, government officials are still expected to explore criminal laws regarding drone use.

Criminalizing Drone Use

California drone lawThe proposed bill would have made it a crime for you to fly a drone less than 350 feet over private property without the owner’s approval. A violation of this proposed law could have led to criminal trespassing charges.

It is unclear whether the bill would have been written into current California criminal trespass laws or if it would have been a separate crime with harsher penalties. The current law states that you are guilty of this crime if you enter and occupy real property or structures of any kind without the owner’s consent, the owner’s agent, or any person in lawful possession.2

In California, criminal trespass is a misdemeanor. If convicted of this crime, you face up to 364 days in county jail and a fine of up to $1,000. It is likely that the proposed law would have imposed these same penalties for unauthorized use of a drone.

Do Drones Violate Your Right to Privacy?

The reasoning behind the proposed law was to protect your right to privacy. This right is generally protected as long as it is reasonable to expect privacy.

With this new law, the California legislature seems to think that it is reasonable for all its residents to able to use and enjoy their backyards without drone interference. Perhaps greater protections are needed considering the surveillance technology in drones.

In property law, the area above and below one’s property is still their property and one still has a right to the use their property without interference. Lawmakers have decided that increased drone use has become a public nuisance, necessitating SB 142 to deter drone privacy invasions. Representative Mike Gatto (D) points out that it is illegal for you to walk onto private property and peer into another’s window—for him, there is no good reason why it should be any different if someone used technology to do it.3

Why Drone Laws Failed

flying drone illegalOpponents of this particular attempt to regulate drone use argued that the law would have needlessly restricted a growing industry that translates to revenue for the state. Moreover, critics say that SB 142 was not narrowly aimed at protecting privacy interests because it would criminalize drones whether or not they are equipped with a camera or video technology.

The law would have restricted unauthorized drone use over private property. It would still be lawful for operators to use drones over their own property, public property such as streets and parks, or even over another’s property with their consent. So not all drone use would have been restricted.

Federal Drone Laws

Despite the bill’s good intentions, it was not passed into law. Part of the reason could be the fact that airspace is already regulated by the federal government.4 Moreover, one’s property does not extend indefinitely and are secondary to government regulation of air traffic and control. If the proposed law passed, it is possible that its constitutionality could have been challenged because it conflicted with federal law.

What Do You Think?

Wallin & Klarich would like to hear your thoughts regarding drone laws in California. Do you agree with the governor’s decision to veto the bill? Would you be angry if a drone was allowed to fly over your private property? Should California create criminal laws regarding the use of drones?

1. [http://www.latimes.com/local/political/la-me-pc-assembly-drones-body-cameras-20150824-story.html]
2. [Pen. Code, § 602]
3. [http://www.huffingtonpost.com/entry/california-drone-ban_55dcaf45e4b04ae49704a9ec]
4. [49 U.S.C.A. § 40103 (West)]

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