This week I was amused when a driver from Sac to Camino asked about the drone she had seen flying low over El Dorado County. Lacking a photo of her own she found one that looked similar and posted it on a popular website. The image she posted looked like a military unit with some kind of apparatus that looks like an armament. This quickly engaged both military-conspiraciest and ex-Vets that worked with military drones. Although this high-flying thead was so fun to watch that I had to pop more popcorn to continue to follow it, there emerged a secondary thread that was more to the point of the original poster: How do you feel about Drones flying over El Dorado County?
Many of us have seen the news stories reporting how an animal rights group sent up a small drone with cameras attached to take video of a group of hunters out on a pigeon shoot. The hunters responded to the drone by shooting it down. Like many in the blogosphere, I was mostly amused, and posted that no one seemed to have told the animal rights group that the first rule of drone warfare is … establish air superiority.
MMORPG flashbacks aside, drones are also used for many worthy tasks that should not be restricted by poorly written laws or irrational trigger-fingers. We have heard of people using their Unmanned Air Vehicles, or Drones, locally to aid in searches of lost people in El Dorado County. We have just heard about Heavenly Resorts using drones to seed clouds over the county to increase precipitation to counteract our current drought conditions. We have seen local parades and other civic events broadcast on public TV that were taken by private UAVs. Because of the cost efficiencies of UAV over airplanes, UAVs are now used for many of the geo-mapping needs of industry and government. We have other stories of private organizations and businesses using UAVs in order to monitor various activities that they find objectionable including slaughterhouses and Whaling operations. Some of this takes place over public land and some of it over private land.
These private activities, whether by advocacy groups or commercial enterprises or just ordinary individuals, conducted over private property raise important questions that will have to answered one way or another. One is whether it is lawful for a private party to conduct surveillance from the air over private property. If it is, then a further question is whether countermeasures – and what kinds – might also be lawful.
Okay. The reality is that our “Right” to privacy from this kind of invasion is essentially a myth. But legislatures in many areas have passed laws and ordinances to restore what is an essential American expectation, privacy when on private property. Although El Dorado is a subdivision of the state and cannot pass any laws or ordinances that conflict with state law, the county Board of Supervisors, and both the Placerville and South Tahoe city councils, can pass rules and regulations that provide additional privacy protections than those offered by state or Federal laws.
What can someone do in El Dorado County if they want privacy from an invasive UAV over their private property?
Kenneth Anderson wrote: “One can always move indoors, and then we will have further, technology-driven debates over what kinds of sensors would be lawful that might permit private parties to “see” inside buildings. We might envision “passive” countermeasures, such as jamming devices – about which the FCC and other regulatory agencies might have something to say. We might have active countermeasures – shoot it down – about which, presumably, law enforcement and other agencies might also have something to say.”
Yes indeed they might!
A recent story in Forbes called, “Thankfully, Shooting Down A Drone Will Land You In Federal Prison” had this to say:
Thankfully, shooting down a drone will land you in jail just as quickly as shooting down a manned helicopter, and that’s a very good thing.
Federal law states in part:
Whoever willfully…sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce…shall be fined under this title or imprisoned not more than twenty years or both.
If it’s being operated as a public or civil aircraft* shooting it down is a crime, it’s unsafe, and despite what the residents of Deer Trail, Colorado may think, their town can’t preempt federal law.
Interesting, we can put the guns away but that does not answer the legal questions raised about Private parties, over private property, engaged in aerial surveillance.
- Is it lawful and in what ways?
- And, lawful or not, what countermeasures are permitted to the property owner, if any?
- And what general bodies of law and regulation are implicated here – property law, trespass, nuisance, etc.
American courts have generally permitted surveillance of private property from public airspace.
The privacy point is simply not grounded in the law. While individuals may believe they have an expectation of privacy in their backyard and that the government or other persons should not be allowed to operate an aircraft to peer down onto private property, that belief is fundamentally flawed. The Supreme Court in Florida v. Riley addressed the question as to whether it would be a violation of the Fourth Amendment for the police to observe from the air a greenhouse on a person’s property that was obscured from ground observation by trees, shrubs, and a home. To conduct their observation the police circled twice over the property in a helicopter at the height of 400 feet and made naked-eye observations through openings in the greenhouse roof and its open sides.
The Supreme Court held:
the Fourth Amendment does not require the police traveling in the public airways at an altitude of 400 feet to obtain a warrant in order to observe what is visible to the naked eye. [In California v. Ciraolo, the court] held that a naked-eye police inspection of the backyard of a house from a fixed-wing aircraft at 1,000 feet was not a “search”… Thus, respondent could not reasonably have expected that the contents of his greenhouse were protected from public or official inspection from the air, since he left the greenhouse’s sides and roof partially open. The fact that the inspection was made from a helicopter is irrelevant, since, as in the case of fixed-wing planes, private and commercial flight by helicopter is routine. Nor, on the facts of this case, does it make a difference for Fourth Amendment purposes that the helicopter was flying below 500 feet, the Federal Aviation Administration’s lower limit upon the navigable airspace for fixed-wing craft. Since the FAA permits helicopters to fly below that limit, the helicopter here was not violating the law, and any member of the public or the police could legally have observed respondent’s greenhouse from that altitude. Although an aerial inspection of a house’s curtilage may not always pass muster under the Fourth Amendment simply because the aircraft is within the navigable airspace specified by law, there is nothing in the record here to suggest that helicopters flying at 400 feet are sufficiently rare that respondent could have reasonably anticipated that his greenhouse would not be observed from that altitude. Moreover, there is no evidence that the helicopter interfered with respondent’s normal use of his greenhouse or other parts of the curtilage, that intimate details connected with the use of the home or curtilage, were observed, or that there was undue noise, wind, dust, or threat of injury.
A new federal law was recently signed by the president that compels the Federal Aviation Administration to allow drones to be used for all sorts of commercial endeavors – from selling real estate and dusting crops, to monitoring oil spills and wildlife, even shooting Hollywood films. Local police and emergency services will also be freer to send up their own drones.
Under the new law, within 90 days, the F.A.A. must allow police and first responders to fly drones under 4.4 pounds, as long as they keep them under an altitude of 400 feet and meet other requirements. The agency must also allow for “the safe integration” of all kinds of drones into American airspace, including those for commercial uses, by Sept. 30, 2015. And it must come up with a plan for certifying operators and handling airspace safety issues, among other rules. The new law, part of a broader financing bill for the F.A.A., came after intense lobbying by drone makers and potential customers. The agency predicts that perhaps 7,500 small commercial unmanned aircraft could be operating domestically five years after that.
But while businesses, and drone manufacturers especially, are celebrating the opening of the skies to these unmanned aerial vehicles, the law raises new worries about how much detail the drones will capture about lives down below – and what will be done with that information. Safety concerns like midair collisions and property damage on the ground are also an issue. Scholars of privacy law expect that the likely proliferation of drones will force Americans to re-examine how much surveillance they are comfortable with.
“As privacy law stands today, you don’t have a reasonable expectation of privacy while out in public, nor almost anywhere visible from a public vantage,” said Ryan Calo, director of privacy and robotics at the Center for Internet and Society at Stanford University. “I don’t think this doctrine makes sense, and I think the widespread availability of drones will drive home why to lawmakers, courts and the public.”
Some questions likely to come up:
- Can a drone flying over a house pick up heat from a lamp used to grow marijuana inside,
- or take pictures from outside someone’s third-floor fire escape?
- Can images taken from a drone be sold to a third party,
- and how long can they be kept?
Drone proponents say the privacy concerns are overblown. Randy McDaniel, chief deputy of the Montgomery County Sheriff’s Department in Conroe, Tex., near Houston, whose agency bought a drone to use for various law enforcement operations, dismissed worries about surveillance, saying everyone everywhere can be photographed with cellphone cameras anyway. “We don’t spy on people,” he said. “We worry about criminal elements.” Still, the American Civil Liberties Union and other advocacy groups are calling for new protections against what the A.C.L.U. has said could be “routine aerial surveillance of American life.”
Fox news recently reported that a Texas law that took effect Sept. 1 tightened rules on taking such photographs, an effort to better protect private property from drone surveillance. The law makes using drones to capture images of people or property without permission punishable by a fine up to $500, while also allowing those improperly photographed or filmed to collect up to $10,000 in civil penalties if they can show that images were collected or distributed with malice.
Supporters say it makes Texas a national leader in ensuring privacy protections keep pace with technology while curbing possible corporate espionage and other unauthorized snooping. But critics worry it gives police too much leeway while trampling on the constitutional rights of private citizens and media outlets.
Republican state Rep. Lance Gooden said he introduced the bill to address concerns that ordinary Texans could use drones to spy on private property, as well as in response to fears that animal rights groups or environmentalists could keep tabs on livestock ranches or oil pipelines. But he said exceptions were added after law enforcement agencies worried the drone bans would make it difficult to do their jobs. Todd Humphreys, director of the University of Texas' Radionavagation Laboratory noted that much of what's prohibited is still acceptable for anyone with a camera and a long lens in a car, helicopter or plane. You can see, all through this legislation, examples of people just being spooked by these vehicles," Humphreys said. "They associate them with war or surveillance like something out of `1984'
"We didn't think that the Constitution gives someone the right to invade someone else's privacy," said Gooden, from Terrell, east of Dallas. Gooden added that instance of uncovering wrongdoing shouldn't trump privacy protections for all Texans. "We could scrap the section of the Constitution that says you've got to get a search warrant, and then law enforcement can just go search a random 100 houses every night," he quipped. "I'm sure they'd find something."
The following is a scholarly article on privacy and drones from a Harvard Law blog:
The Private Law of Drones
I have been writing over the last few weeks about drones and the opportunities and challenges they represent for local governments. This is the last entry in that series.
One aspect of the drone problem that is particularly ripe for local level attention, and is likely to be neglected in national regulation, is how ordinary people will use drones recreationally or invidiously.
If you’re a hobbyist, where are you going to fly these? On your own private property is probably safest from a legal standpoint. The Supreme Court held in United States v. Causby that a landowner has the right to “at least as much space above the ground as he can occupy or use in connection with the land.” While Causby abrogated the common law precept that your property extends to the heavens, relatively low altitude flight is still protected.
More realistically, people will fly these where there are things they want to see: over populated areas and natural beauty. For the appeal of images of populated areas, look only at the success of Google Street View. An animal rights group also recently tried using a drone to tape a pigeon shoot — until the hunters shot it down. It is also easy to imagine people flying these in city or state parks. Both present risks of midair collisions with manned aircraft, but beyond that each flight area presents its own challenges.
Flying drones over populated areas present two concerns. The most obvious is a safety challenge. Even though many drones weigh only a few pounds, they can easily cause damage if they crash into buildings, cars, and children. In addition, sensor equipped drones present a privacy challenge. Even though the concerns are less significant than from a state intrusion, people still do not want other private citizens watching them. What’s the difference with the paradigmatic cases of the neighbor binoculars or the predator with a telephoto lens? The drones make it possible to spy from a distance and over a wider range of conduct, revealing more details of one’s personal life to a broader group of people. And I don’t think people like the idea of being watched with binoculars, either.
Traditional tort law falls short as a way of private individuals seeking to protect their privacy, according to a recent CRS report by Alissa Dolan and Richard Thompson II. The invasion of privacy tort relevant here, intrusion upon seclusion, requires a victim to have an expectation of privacy, generally limiting violations to observation within the home or particularly egregious public spying. There is also a high bar for how offensive the invasion must be to qualify.
Flyers of drones on others’ private property at low altitudes are probably committing a trespass, because they intentionally are entering another’s property. However, as Dolan and Thompson note, there is unlikely to be much noise or dust stirred up by a 4 pound drone, so there will be only nominal damages (barring a crash). If the violation is repeated and highly intrusive, it may be sufficient to constitute a nuisance, allowing for an injunction. But a high-flying, occasional flight over the city is unlikely to trigger any of these torts.
The final potential resort is a criminal harassment, stalking, or annoying electronic communicationsstatute, depending on how it fits in with the user’s overall pattern of conduct. The challenge for a complaint under these statutes would be that the laws target the threatening message being communicated to the victim, whereas a drone primarily serves to communicate information back to the operator.
Drones flying over public parks present a safety hazard. Rules currently prohibiting model airplanes from flying in local parks would probably also describe drones, but it would depend on the city ordinance.
Some local regulation of drone use by hobbyists is necessary to protect the privacy, property interests, and safety of residents. Cities can pass ordnances to limit unsafe or inappropriate intrusions. But it’s worth considering that the failure of tort law to provide redress against recreational use of drones perhaps suggests that the intrusion is not always so severe that it deserves legal sanction. Legislation should be tailored to those uses that are truly harmful, and it shouldn’t go so far as to limit the many amazing opportunities for exploration, art, or commerce that widely available aerial photography presents.
For more on the legal issues at stake with drones, check out the great CRS report mentioned above.