You’ve saved, shopped online, watched “unboxing” videos on YouTube, and read the owner’s manual, and now it’s time for you to take your new drone for its maiden voyage. The one question that may still be unanswered, however, is: how can you enjoy your drone, while not violating privacy laws? Imagine you decide to take your UAV for a flight across town to capture some video footage of the summer festival. Look down there; the crowds are swarming around the cotton candy booth, the line for the Ferris wheel is swelling, and the Foreigner cover band is killing it on stage. You’re getting all the action on film, thanks to your UAV! However, the question is whether all the people you filmed waiting on line for a corndog have a claim against you for invasion of privacy.
The answer to this question requires a highly complex legal analysis, because the law is volatile and extremely uncertain. Right now, as you are reading this blog post, there are congressmen chain-smoking, scratching their heads, and sweating over their fourth cup of coffee as they draft new privacy regulations for drone operators. The FAA is hoping to make privacy a major focus in their new UAV regulations, set to come out who knows when. Suffice it to say, drones will probably be a thing of the past by the time the Federal government gets its act together and passes some privacy regulations that make sense. Earlier this year, the FAA was sued by the Electronic Privacy Information Center (EPIC) because the FAA’s initial drone regulations failed to address privacy. EPIC pointed to the fact that a drone’s ability to gather personal data such as a location “poses a public safety problem for millions of individuals.” The case is still pending in a Federal court of appeals in Washington, D.C. Harley Geiger, advocacy director for the Center for Democracy and Technology says, “until privacy concerns are dealt with or made clear by some government entity, the drone industry will continue to develop at a slower-than-possible pace because the general public won’t embrace the industry.”
So where does that leave you as a drone operator? Congress says that drone operators should look to the states for privacy related regulations. Some states, including Florida, are placing restrictions that seemingly make the state a no-drone-zone. Take a look at the language from Florida’s new Unwarranted Surveillance Act:
A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.
As per this language, you do not have a reasonable expectation of privacy if you’re observed from a helicopter, but do have an expectation of privacy when observed from a drone.
There are exceptions for commercial operators, however. Land surveys, power grid inspections, cargo delivery, and possibly even professional photographers and realtors may fall into this exception. The operative language from the statute is whether the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s or entity’s license. The exception does not apply a profession in which the licensee’s authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.
While Florida is attempting to pass these poorly worded laws; other states are developing drone regulations like a teenager’s beard…very patchy. Oregon is prohibiting a drone operator from using it to fire a bullet, shoot a laser, or crash into an aircraft. In North Carolina, “it shall be a Class 1 misdemeanor for any person to fish or to hunt using an unmanned aircraft system,” per N.C. Gen. Stat. Ann. Section 14-401.24. And in Illinois, it is a crime to “use … a drone in a way that interferes with another person’s lawful taking of wildlife or aquatic life,” per Illinois Compiled Statutes, 720 ILCS 5/48-3. As a result, drone operators must look to state privacy laws, which traditionally provide extremely limited privacy rights in connection with actions taken in public or which are available from the public view. The generally thinking is: if the subject matter is visible from public view, you are not violating privacy laws. Hopefully future drone laws in Florida will revert to this general rule and expunge exceptions for drone operators.
How can you avoid intruding on someone’s privacy? Where is the public/private line for drone operators? Despite there being very little law on the issue, many drone operators have gotten themselves on the wrong side of Larry Law recently because of the fine line between public and private. In 2014, a New York man was arrested for flying his drone close to a medical facility. Patients complained that the drone operator was deliberately spying into the examination rooms. The drone operator was acquitted of the charges, because he wasn’t intentionally peeking into the building, and his actions were of little or no harm.
However, there are situations in which the public/private line is not as obvious. What will the courts do in the area of divorce investigations? Take for example a case where a spouse hires a private investigator to fly a drone over Central Park in pursuit of photographic evidence of a cheating spouse and his mistress. The issue is whether or not the subject matter is public (because they are in a public space), but they are engaged in a very private situation. It’s hard to say here, because while the two were in a public place where privacy expectations are lowered, it isn’t too much of a leap to predict that this drone has entered an area that is clearly private. In Florida, this would be an illegal invasion of privacy because private investigators are almost exclusively prohibited from gathering intelligence with their drones.
So the question remains: are you liable for the people you filmed while flying your drone over the town festival? The Federal government says, “we don’t know, ask the states.” The states say, “you might be liable, but you will have to check our law.” Essentially, it all boils down to which state you are operating your drone in and how it views invasion of privacy. A good rule of thumb is that if the subject matter is reasonably in public view on ground level, you could argue that you did not violate privacy.
Whether you operate your drone for business purposes or just for fun, you should be cognizant of everyone else’s privacy concerns. If you have any questions or concerns, don’t hesitate to call the drone lawyers at The Ison Law Group. Call us toll free at 1-855-LAW-1215 or 863-712-9475.