Drones and the Fight for Privacy

Drone technology has developed rapidly over the last few years, and prices for consumer drones have continued to drop. This enables new enthusiasts to be able to purchase and use drones for a variety of recreational purposes. Along with advancements in flight technology, camera technology has developed that allows drone users to capture amazing footage of the flight, the neighborhood, and even the neighbors themselves.

However, consumers are not the only ones excited about drone tech advancements. Law enforcement has also been exploring how drones can be used to see into places that were previously inaccessible. This has led to privacy concerns rising in direct proportion with the affordability of very capable drones.

Privacy from flying surveillance is not a new issue. In Florida v. Riley (1989), the U.S. Supreme Court ruled that law enforcement does not need a warrant to view a person’s property or activities from the air. The ruling followed a long line of plain view doctrine cases, but included a line of reasoning that could become particularly important in the battle for privacy as drones become more prevalent. The Court based its decision on the fact that the officer was operating within airspace that could have been used by the general public and that the operation did not interfere with the landowner’s normal use of the property. Kyllo v. U.S. added that using a device that is not in general public use to search a home would require a warrant.

Taken together, these two cases mean that as public drone use increases, so does the expanse of public airspace and viewing technology. The necessity for law enforcement to obtain a warrant to conduct a search by drone will become increasingly small.

What about privacy from the prying eyes of neighbors? The FAA has fought to maintain some measure of authority over the use of drones by private individuals, and their grasp on drones has tightened over the last year. However, they are principally concerned with safety issues, so state law has picked up privacy issues. States are split over how to handle drone issues, but Florida led the march into privacy issues with the Freedom from Unwarranted Surveillance Act (FUSA) signed into law in 2013. This year, Florida expanded FUSA to add additional privacy protections.

The additional language that was added to FUSA provides some level of protection against drone surveillance by private parties, and it even establishes a civil cause of action for intentional violations. While intent may be difficult to prove, the civil cause of action is enhanced by a provision that entitles a winning plaintiff to collect attorney fees up to twice the actual value of the time expended on the case. Clearly, there are some very sharp teeth in this law.

Furthermore, the new FUSA sections enhance Florida’s prohibition on drone-assisted surveillance by adding a host of definitions intended to close any loopholes in the prior law. Notably, the new law seems to recognize that the recent increase in drone use sets law enforcement up for increased surveillance opportunities under Riley and Kyllo. FUSA seeks to directly limit Riley and Kyllo by stating that “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.” The law includes some exceptions, but exceptions for law enforcement are limited to terrorism, warrants, and imminent danger. Clearly, Florida is very serious about maintaining privacy in the face of new technology, even from law enforcement.

It seems that Florida has built a model for other states to consider when wrestling with the line between drone use and privacy. I expect that many states will follow their lead, however I also suspect that in years to come we will see politicians back away from such strict policy as law enforcement builds its case for the use of drones to root out crime. Furthermore, individual challenges to laws like FUSA are imminent.

Civilian drone use will likely expand under First Amendment arguments as long as civilians can show that airspace used for drones is public space. In any case, it seems that technology will always offer new challenges to privacy, and drones are just the most recent example.

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