Until
recently I was on the fence about them, let’s face it they come with some
social challenges that are not easily overcome; invasion of privacy, security,
etc. Despite all of that I cannot ignore
that they are growing in popularity and yes that there is a need for them. Drones are proving to be extremely beneficial
in places where people cannot reach or are unable to perform in a timely and
efficient manner. An example of that is
in the real estate market, real estate agents use this technology to take
aerial photographs of listings, as a real estate professional this is a great
idea; give a potential buyer a birds’ eye view of the property, that birds’ eye
view may make all the difference in their interest in the property!
Some of the other areas drones
are used include; geographic mapping, crop monitoring, law enforcement and
border control surveillance, storm tracking and forecasting hurricanes and
tornadoes. It will be interesting to see
where and how this technology evolves, speculation has it they will have
enhanced intelligent piloting capabilities (auto action for takeoff, landing
and task execution) and smart drones. In
any event I have a new appreciation for the technology and that the application
potentials are immense.
So does restricting drone usage infringe on our rights?
Drones and Personal Privacy
If
you use drones either for business or recreational, it is important to have a
basic understanding of what is allowed and not allowed in federal, state and
local rules, regulations and ordinances.
In particular, it is important to understand your local (city and town)
ordinances, they may be as simple as restricting drone backyard overflights, peeping
in the windows of neighbors or more complex depending on the municipality. As you can imagine your neighbors may have
some issues with drones flying over their backyards or hovering at window
height to their home, remember you will be legally accountable for violating
homeowner privacy.
Know Before
You Fly is a great resource for understanding rules for operating drones, these rules
are broken down to cover three areas of
usage; recreational, business or public entities. “Know Before You
Fly was founded by the two
leading organizations with a stake in UAS safety – the Association for Unmanned
Vehicle Systems International (AUVSI) and the Academy of Model Aeronautics
(AMA). The campaign is conducted in
partnership with the Federal Aviation Administration (FAA), the federal agency
charged with keeping the U.S. national airspace safe.” (Federal Aviation
Administration, copyright 2015).
While
municipalities currently seem to be free to enact ordinances that some may find
comforting (i.e. prohibiting backyard overflights, peeping in the windows or
general restrictions), it is the small operator the one who is just out taking
vacation pictures that may end up getting caught up in a net of complex legal
issues. It may cost that recreational
enthusiast serious money to defend a hobby, and that is not right.
A Look at State Laws
“State lawmakers approved a bill that
specifies that flying a drone over or near any house, occupied vehicle or other
place where one may reasonably expect to be safe from uninvited intrusion or
surveillance is a form of harassment that could be considered stalking.”
(Fifeld, Jen, 2016).
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| Image http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/07/01/data-drones-and-apps-states-debate-privacy-protections-as-technology-speeds-ahead |
“Since 2013, 31 states have passed laws regulating drones,
with 12 laws related to privacy protections from other residents, 21 laws
imposing restrictions on law enforcement and 13 laws imposing criminal
penalties on drone misuse, such as stalking, according to NCSL”, (Fifeld,
Jen, 2016), see Drones in the United States map for specifics.
“At the same time, the number of drones in use
is skyrocketing, especially for personal use.
As of last month, there were about 459,400 registered drones for
hobbyists and about 8.400 registered drones for non-hobbyists, according to the
Federal Aviation Administration’s online database. That compares to 325,000 in February, when the
FAA first released data.” (Fifeld, Jen, 2016).
“Waite, the University of Nebraska journalism professor, said
many of the state laws regulating drone use are unnecessary. If a state already has a law that allows for
a reasonable expectation of privacy, which many states do, it should not matter
how the privacy was violated, he said. There
are legislators that are going to look for feel-good solutions that are going
to make legitimate things illegal, and they are going to infringe upon First
Amendment rights.” (Fifeld, Jen, 2016).
It begs the question,
are these changes in law necessary to protect privacy rights? Do states have laws to address this type of
invasion (private property laws, peeping toms, etc.)? A prominent drone attorney Brenda Schulman clearly argues, "We already have laws to address if
people are being spied upon, it doesn't seem to me that the technology being
used would make a difference." (Sterbenz, C. 2014).
In line with that thinking, Warner,
Norcorss, & Judd (2016) published a finding by the U.S. Court of Appeals ruled the FAA requirement to register all drones,
used for recreational purposes is invalid.
“Federal
law establishes the FAA’s authority to set rules and regulations for the use of
“model aircraft,” including recreational drones. That law places restrictions
on the ways the FAA can (and cannot) regulate such aircraft. Interpreting the
scope of the FAA’s authority under this law, the court found that the FAA did
not have the power to require drone users to register drones that are used
strictly for recreational purposes.[4] That rule exceeded the FAA’s authority.”
(Warner, Norcorss, & Judd, 2016).
Constitution’s First Amendment
Our Constitution's First Amendment “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for a redress
of grievances.”
“Generally speaking, to qualify for First Amendment protection, a person must show that he or she has a message to be
communicated and an audience for that message, notwithstanding the medium
through which that message is communicated.
In short, conduct designed to convey a message to an audience, such as
the use of drones for photography and videography as part of the newsgathering
and reporting process, qualifies for First Amendment protections.” (Connot,
Mark, J., & Zummo, Jason, J., 2016).
Although the boundaries are not well
understood, the First Amendment provides the right to record including engaging
in drone flight for the purposes of image capture.
Constitution’s Fourth Amendment
Of course, there is the
Fourth Amendment, which is there to protect Americans from unreasonable search
and seizures. Richard M. Thompson II, an attorney for the
Congressional Research Service, performed a 2013 studyto assess the use
of drones under the Fourth Amendment right to be free from unreasonable
searches and seizures. He explains “the
touchstone of the Fourth Amendment is reasonableness.” (Thompson
II, Richard M., (2013, p. 2).
A reviewing court's determination of the reasonableness of drone
surveillance would likely be informed by location of the search, “the
sophistication of the technology used, and society's conception of privacy in
an age of rapid technological advancement.” (Thompson II, Richard
M., (2013, p. 2). “While
individuals can expect substantial protections against warrantless government
intrusions into their homes, the Fourth Amendment offers less robust
restrictions upon government surveillance occurring in public places and
perhaps even less in areas immediately outside the home, such as in driveways
or backyards.” (Thompson II, Richard M., (2013,
p. 2).
The funny thing about that though is, as
technology changes and we become more accustomed to surrendering more of our
privacy, our concept of what is considered unreasonable is changing as
well. Take for
example Google, specifically Google Earth VR and Google Maps.
Google Earth VRis used to view our world,
allow you to fly over a city, stand on the edge of a mountain and even look at
your neighbors’ backyard and Google Mapsprovides the ability to track our
locations. Think about it, wherever you
go, you have a smartphone
with GPS capabilityallowing your location
to be pinpointed to within a few feet, (Hoven,
J.V., Blaauw, M., Pieters, W., & Warnier, M., 2014). Even if you have your GPS turned off, the
smartphone is talking to cell towers, or scanning for WiFi access points, (Hoven, J.V.,
Blaauw, M., Pieters, W., & Warnier, M., 2014).
YouTube Video https://www.youtube.com/watch?v=SCrkZOx5Q1M
Not that long ago it would have been unheard of to allow a company like Google to do either of these things but it is accepted now and as a result we accept the trade off for having this kind of technology readily available. As these technologies became widely-accepted, our perceptions change and resistance to them largely disappear. So, it’s not hard to imagine what seems unreasonable today, may not be in the future.
Constitution’s Fifth Amendment
The Fifth Amendment, among other things, protects citizens
from a taking of private property for public use without just compensation. While
the concept of the air as a public highway has largely overturned the concept
of air rights as they are defined in real estate, as “the rights to the use of the open space or vertical plane
above a property, ownership of the land includes the right to all air above the
property” (Inc., J.J. James J. Bremis
Realty Inc.), this does not preclude the owner from
seeking civil remedies in a court of law against aircraft operators flying
overhead or in close proximity to the owner’s land. This same right extends to the drone business
or recreationalist, if damage or interference can be demonstrated. So what that
means to drone businesses or recreationalists is they have to be mindful of
that fact and apply common sense approach to operating drones.
Reasonable Expectation of Privacy
A 'reasonable expectation of privacy' what does
that really mean? The reasonable
expectation of privacy is one element found in privacy law and in which people
have a legal right to privacy. There is little doubt that the vast majority of people have a reasonable
expectation that what they do inside their homes or in their gardens is private
and that it will not be filmed, published or broadcast.
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| Image https://unsplash.com/photos/C3vDkAmbSws |
The question is what is the difference between a resident who photographs
a public place or street from a window in a multi-story building, resulting in
a photograph showing people who have not given their consent, as opposed to someone
who uses a drone, flying at the exact same height, to photograph the exact same
scene, showing exactly the same people? Check out this Blog ‘Street photography and the law: 7 things you
need to know’ (Wilkerson, Sarah, 2017) and ‘Photographic Privacy: Can You Take That
Picture?’ (O’Sullivan, W., 2015), do these same rules
make sense for drone usage? I believe
they do and ultimately if you think about it, photography has been around for a
great number of years and been enjoyed by businesses and recreationalists
alike, and for the most part we have been doing alright with these common sense
rules. So yes drones have more
capability and can reach greater distances but given guidelines is there any
reason to think we would not have the same experience we have had with
photographers?
Conclusion
So where does this leave us? Clearly, the debate about drones and privacy
is just beginning. Each new drone owner means another vote for legislation
protecting citizens’ right to fly these machines, and every incident involving
a drone will be met with calls for strict regulations. The laws surrounding
drones and privacy are sure to change drastically over the next few years as
lawmakers become forced to address the topic.
Where do you stand on this issue, and why?
References
1. Federal Aviation Administration. (Copyright 2015). Know Before You Fly. Retrieved from http://knowbeforeyoufly.org/
2. Fifeld, Jen, (2016, July 1). Data, Drones and Apps: States
Debate Privacy Protections as Technology Speeds Ahead. Retrieved from http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/07/01/data-drones-and-apps-states-debate-privacy-protections-as-technology-speeds-ahead
3. Sterbenz, C. (2014, September 24). Should We
Freak Out About Drones Looking In Our Windows?
Retrieved from http://www.businessinsider.com/privacy-issues-with-commercial-drones-2014-9
4. Warner, Norcorss, & Judd, (2016, June 6).
Court Grounds the FAA: Recreational Drone Flyers May Avoid Registration. Retrieved from https://www.wnj.com/(S(535zpviz1dnticiqu5cb5j45))/Publications/Court-Grounds-the-FAA-Recreational-Drone-Flyers-M
5. Connot, Mark, J., & Zummo, Jason, J., (2016, July 27).
United States: First Amendment In The Sky Drones, Part 107, And Free
Speech. Retrieved from http://www.mondaq.com/unitedstates/x/514316/Aviation/First%20Amendment%20In%20The%20Sky%20Drones%20Part%20107%20And%20Free%20Speech
6. Thompson
II, Richard M., (2013, April 3). Drones in Domestic
Surveillance Operations: Fourth Amendment Implications and Legislative
Responses; Congressional
Research Service. Retrieved from http://www.fas.org/sgp/crs/natsec/R42701.pdf
7. Introducing Google Earth VR. (n.d.). Retrieved from https://vr.google.com/earth/
8. Resnick, D. (2017, March 22). Share your trips and real-time
location from Google Maps. Retrieved
from https://www.blog.google/products/maps/share-your-trips-and-real-time-location-google-maps/
9. Hoven, J.V., Blaauw, M., Pieters, W., & Warnier, M.
(2014, November 20). Privacy and
Information Technology. Retrieved from https://plato.stanford.edu/entries/it-privacy/
10. Inc., J.J. James J. Bremis Realty Inc. Retrieved from http://www.bremis.com/37/Real-Estate-Glossary
11. Wilkerson, Sarah (2017, October 17). Street Photography and the Law: 7 things you
need to know. Retrieved from https://www.clickinmoms.com/blog/street-photography-and-the-law-7-things-you-need-to-know/
12. O’Sullivan, W. (2015, June 5). Photographic Privacy: Can You
Take That Picture? Retrieved from http://www.shakelaw.com/blog/photographic-privacy/
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