California was one of many states that strengthened its privacy laws after the shocking death of Princess Diana, who was fleeing paparazzi when her car crashed in a Paris tunnel in 1997. Since then, lawmakers have proposed a seemingly endless series of additions and tweaks to California statutes in response to the changing tactics of celebrity photographers. Their efforts, though, have often been too broad, impeding the public’s access to news, or too narrowly tied to technologies with short shelf lives.
Now, the Legislature is trying to grapple with the prospect of paparazzi using camera-equipped drones to bypass bodyguards and fences, monitoring celebrities from the air whenever they step outside or even venture near a window. The state Senate passed a bill last year that would have made photographers liable if they used “unmanned aerial vehicles” to take privacy-invading pictures or recordings, but the bill died last year in the Assembly. The Senate is now considering a simpler proposal from Assemblyman Ed Chau (D-Monterey Park) that would make the state’s privacy laws less technology-specific and more grounded in general principles. It’s a welcome change.
The state’s extensive laws on privacy, trespassing, stalking and harassment already provide remedies for those who feel hounded or intruded upon by paparazzi, regardless of the means they use. Rather than improving the enforcement of those strictures, though, some lawmakers want to add new ones. They fear that the existing protections which allow people to sue when a “visual or auditory enhancing device” is used to gather images or recordings that couldn’t have been acquired otherwise without trespassing, wouldn’t apply to a drone equipped with an ordinary camera or camcorder. And with the Federal Aviation Administration expected to set rules next year allowing the commercial use of drones there’s a real prospect that paparazzi will stop lurking outside their subjects’ front gate and start flying cameras into their yards.
Chau’s proposal, AB 2306, would delete the reference to “visual or auditory enhancing” devices. Instead, an invasion-of-privacy lawsuit could be brought regardless of the device employed, as long as the three other standards already in the law are met: that the method used to collect the image or recording is “offensive to a reasonable person,” that the subject had a “reasonable expectation of privacy,” and that gathering the image or recording without the device would have required trespassing. Such a change would allow the law to remain relevant even as new technologies — such as drones — emerge, without extending privacy protections to places where they can’t reasonably be claimed. That’s a more sensible approach than trying to adapt the law to the latest techniques in celebrity hounding.
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