The Evolution of Privacy Laws in Light of Emerging Drone Technology

(Source: jdsupra.com)

  Unmanned Aerial Systems (UAS), more popularly known as drones, are a complex and transformative technology that has demonstrated its value in military applications across the globe. Although the Federal Aviation Administration virtually precludes all civilian commercial drone use and general flight above 400 feet in the United States, domestic drone operators are taking their systems to the skies within (and outside) the FAA’s limitations. Beneficial applications of domestic drone operations are easy to imagine, ranging from law enforcement and scientific study to delivering packages—Amazon recently applied for FAA’s permission to undertake this ambitious endeavor. But equally plausible are potentially dangerous, abusive and privacy-invading applications, particularly as drones equipped with cameras and other sensing equipment increasingly take to the skies. One such societal concern is a person’s right to privacy.

As when other new technologies have first emerged, some drone operators have forgotten the adage of “just because you can do something, doesn’t mean you should.” A few recent examples seem to justify concerns about the ability of drones to invade personal space. For example, drone operators have been documented harassing beachgoers and people in their private homes and backyards. Mischievous operators have become even more imaginative, such as when one flew his drone outside a New York medical building’s patient exam room windows. In another example, a disabled drone was found on the 30th floor outdoor balcony of a St. Louis law firm. Civilian drones are even beginning to appear above accident scenes where crash victims may be vulnerable to unwanted prying eyes, and the drones themselves may hinder rescue efforts. Aside from these examples of civilian misuse of drone technology, expanding law enforcement use of drones raises Fourth Amendment privacy concerns.

So how does current law balance privacy concerns and drone use, and how will the law adapt to the evolving technology?

Established criminal and civil law does address some situations. For example, in Connecticut, an outraged beachgoer was charged with assault when she confronted a teenage boy who was using a drone to record images of people sunbathing on the public beach. While he might be considered “creepy”, the teenager was not charged with a crime because he was using his drone in a public place. But some cases are not so clear cut. The operator piloting the drone outside of the New York medical building was arrested and charged with “unlawful surveillance,” a statute questionably applied to the circumstances. In Ohio, police arrested a drone operator at an automobile accident scene and charged him with “obstructing official business,” “misconduct at an emergency,” and “disorderly conduct” because his drone apparently was affecting the safety of an incoming medical helicopter. Commentators have suggested that in that case, and in other similar circumstances, police twisted the law to limit the operator’s first amendment rights.

To better address the conflict between privacy and drone use, state legislatures across the country have passed privacy-oriented legislation. Some states have passed laws limiting governmental drone use, partly because governmental use has not been constitutionally tested, at least not widely. In Texas, a recent law not only criminalizes the use of drones to capture images of private property or the tenants therein, but it also provides a cause for civil action. Focusing on a different context, a Tennessee law makes it a misdemeanor for drone operators to harass those hunting and fishing. Undoubtedly, other privacy-protective laws will evolve as lawmakers adapt to the emerging technology and their constituents’ demands.

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