Get Out of My Space: Drones and Privacy Law

By Carolyn Wimbly Martin and Ethan Barr

In 1849, the Austrian military sent a fleet of large, unmanned balloons equipped with explosives in an effort to blockade the Republic of Venice. Since these “aircraft” were somewhat autonomous, many believe these balloons to be the first example of unmanned aerial systems (UAS), commonly known today as drones. Throughout the next two centuries, drone technology advanced significantly. Individuals became able to control devices remotely or allow them to do the work, leading to a substantial proliferation of the use of drones worldwide.

Although countries continued to develop this technology mostly for military and civilian safety purposes, drones have made their way into people’s homes. Individuals have used drones to map scenic landscapes, perform construction tasks and teach engineering skills to K-12 students. Major League Baseball pitcher Trevor Bauer famously cut his finger flying a personal drone in 2016, delaying a return to his team during a crucial playoff run.

Given the obvious concern for physical danger from a vehicle with mini-helicopter blades, there are clearly liability issues.  Likewise, there are legal issues relating to product liability, drone misuse in the scope of employment and patent infringement. However, privacy law remains a huge question mark both nationally and internationally because of fragmented legal frameworks and a reluctance from the Federal Aviation Administration (FAA) to meddle in privacy issues.

First, government action is under intense scrutiny, as the Department of Homeland Security (DHS) has already been criticized for using drones to capture footage of recent peaceful protests. Secondly, if laypeople can operate drones in common airspace, invasions of property will inevitably become more common and may lead to increased litigation between private parties. For instance, what happens when a construction worker attempts to remotely fix a windowpane and accidentally eavesdrops on a confidential therapy session?

Unfortunately, drones may be yet another example of technology that is advancing more quickly than the laws intended to govern it. Despite the hands-off approach to privacy law at the FAA, the National Telecommunications and Information Administration (NTIA) has provided “Guidelines for Neighborly Drone Use” as an appendix to its “Voluntary Best Practices for UAS Privacy, Transparency, and Accountability.” The rules advocate primarily for obtaining consent for data collection, transparency in privacy policies for “covered data” and general security measures. But these are merely suggestions which warrant a deeper look into who is held responsible for invasions of privacy and how.

Regulations Affecting Drone Use

It was not until the 21st century that the United States began using drones in high-profile non-military scenarios. Notably in 2005, the FAA did not have authorizations in place to permit the use of drones to search for survivors in the aftermath of Hurricane Katrina, due to both technological limitations and air safety. Fortunately, the FAA worked quickly and released an authorization the next year for the purpose of finding survivors of disasters.

Now the FAA almost exclusively regulates the use of and access to drones at the federal level. Its first effort was making a major distinction between occupational and hobbyist drone flights. When flying drones for work purposes, there are more limitations in terms of altitude, weight and permitted flight times, although the FAA provides waivers that may permit pilots to bypass those restrictions. The FAA also mandates different requirements for personal and commercial drones. More advanced models may require a license and registration, among other strict regulations, but much lighter models may classify as mere children’s toys.

More importantly, drone law is decentralized, with states and cities establishing their own sets of laws. For instance, New York State has one law governing the use of drones, but New York City restricts flights enough to effectively prohibit them almost city-wide. And of course, drone pilots must take note of foreign laws when flying in areas close to international borders.

However, at least one court has expressly ruled that federal laws preempt state and local laws regulating drone usage. Singer v. City of Newton, 284 F. Supp. 3d 125 (D. Mass. 2017). Furthermore, in 2018, the FAA issued a press release affirming that state and local laws governing drone flight paths, altitudes and airspace are preempted by federal law. States and municipalities may use land use powers to regulate landing sites for all aircrafts, including drones, but the FAA still retains authority that many believe is too broad. Although some companies have received approval to operate in U.S. airspace, many smaller entities are prohibited from doing the same. Critics say that this harms the drone industry overall, forcing many organizations to manufacture, test and operate the technology overseas.

Despite heavy-handed regulation in the U.S., the drone industry continues to thrive. Over a million drones have been registered for recreational use alone. Widespread personal drone use places the spotlight on a particular section of the previously mentioned FAA press release: “Laws traditionally related to state and local police power—including land use, zoning, privacy, and law enforcement operations—generally are not subject to federal regulation.” (Emphasis added.) Therefore, it is important to examine the potential flaws in the existing privacy law landscape.

U.S. Privacy Law and Drones

Before exploring other potential areas of law to govern drones and privacy, let us first acknowledge that the FAA has moved the needle ever so slightly. In December 2019, it released a notice of proposed rulemaking that would require remote identification of all drones. The system would be implemented beginning in 2021, and the FAA has already recruited a team of eight companies to collaborate on the technology. Regardless, these systems are in their infancy, and the FAA has fastidiously repressed ideas of any further regulations regarding privacy.

Constitutional Law

The use of drone surveillance by government entities, specifically DHS and law enforcement authorities, may run afoul of constitutional protections for citizens. Recall the recent government surveillance of protests. The First Amendment protects the right to free speech, peaceful assembly and petitions for redress of grievances, and the Fourth Amendment protects the right to be free from unreasonable search and seizure by the government.

Surveilling protests may be the most blatant example of encroaching on free speech.  However, under the First Amendment, people also have the right to take photographs for the sake of art and, more importantly, news reporting and commentary. If drone pilots are sued for taking aerial photos of a group of people in a back-alley counterfeiting U.S. currency, there is arguably a violation of the First Amendment in terms of freedom of the press. In fact, the Senate has already introduced the Preventing Emerging Threats Act of 2018, which would grant the Departments of Homeland Security and Justice the power to prohibit drones from accessing excessively broad areas. The caveat is that the departments would be required to consult with the FAA.

While these First Amendment concerns abound in private litigation, many individuals may have claims that the Fourth Amendment protects them from unwarranted government drone surveillance. Although the Supreme Court has yet to rule on a case involving drone technology, it has expressly stated that there is no reasonable expectation of privacy when helicopters or airplanes fly within the area immediately surrounding one’s home, defined as the “curtilage.” California v. Ciraolo, 476 U.S. 207 (1986). More importantly, law enforcement officials have every right to observe private property from public airspace, including from helicopters flying at an altitude of 400 feet. Dow Chem. Co. v. United States, 476 U.S. 227 (1986); Florida v. Riley, 488 U.S. 445 (1989). Together, this suggests that surveillance drones flying over 400 feet may be used to retrieve information about protesters or any other “suspect” activity. So long as a thermal imaging machine (one of the very few technological devices prohibited from intruding upon privacy) is not used, it is likely constitutional. Kyllo v. United States, 533 U.S. 27 (2001).

It is worth noting that a federal law prohibiting the use of drones to spy on private property would not run afoul of either the First or Fourth Amendment for ordinances restricting flights under an altitude of 400 feet. However, a court would likely defer to the FAA’s expertise is enforcing such laws. Unless the FAA takes initiative to advocate against encroachment on the right to privacy, we are likely left to await legislation per jurisdiction and navigate the various state laws that already exist.   

State Laws

Current state laws regarding drones and privacy are an unfortunate patchwork that may create substantial problems in litigation involving two or more jurisdictions. For example, the State of Alabama, in addition to several other states, has no law governing privacy from drones, let alone any law expressly referring to drones. However, the neighboring State of Mississippi has a specific law dedicated to protecting people from being spied upon through the window or other opening of any building by a drone.

More importantly, many states differ drastically in governance of data privacy overall. While states with a prominent number of tech companies, corporate lobbyists and funds, such as California, are more inclined to diligently develop privacy laws, other states may be susceptible to passing laws that are less protective of personal data. For instance, almost half of U.S. states have no active legislation or task forces dedicated to privacy laws. Therefore, due to inconsistency in privacy laws across state lines, the need for a uniform law that governs drones and the fundamental right to privacy is increasingly urgent.

The Uniform Law Commission (ULC), a non-profit organization aimed at drafting stable legislation across multiple jurisdictions and known for its contributions to the Uniform Commercial Code, has already taken a stab at establishing drone privacy law to avoid fragmentation. In 2019, the ULC drafted the Uniform Tort Law Related to Drones Act. The proposal sets a standard of “substantial interference” for an invasion of privacy tort that may incur liability, as well as factors that may determine that interference. While the ULC has received comments from experts and stakeholders, it still awaits additional guidance from the FAA regarding drones. Therefore, the drafted legislation serves as somewhat of a guidepost, but it will likely stagnate given the FAA’s stance regarding privacy law intervention.

Privacy Tort Law

There are four primary torts in privacy law: 1) public disclosure of private facts, 2) false light, 3) appropriation of name, image or likeness (NIL), and 4) intrusion upon seclusion. However, the first three involve disclosure of information. If a drone is used to obtain and distributeprivate information about an individual, that person may have a legitimate claim of harm under any one of those first three torts. However, there are limits to each. First, false light is not a viable claim unless the disclosure of information is widespread and “highly offensive to a reasonable person.” Second, in addition to the elements for false light, a public disclosure claim may be rebutted if the information is deemed newsworthy. Finally, most appropriation of NIL claims involve public figures whose images have been exploited for financial gain.

If an individual or government agency uses a drone to capture such information without disseminating that information elsewhere, the final tort of intrusion upon seclusion appears to provide an avenue for redress. Nevertheless, this may be limited to voyeuristic scenarios. The tort generally requires intrusion on solitude or private affairs, which rules out a claim concerning government surveillance of protests. Furthermore, the intrusion must be intentional. Harkening back to the hypothetical situation of a construction company drone accidentally eavesdropping on a therapy session, the patient has no claim. Most importantly, this tort also requires that the intrusion be objectively highly offensive, leaving us with a crucial question: Are drones so commonplace that their potential intrusions are not offensive and even expected?

International Privacy Law

It is also worth noting that privacy torts are entirely dependent on jurisdiction. Some courts have different interpretations of important terminology, such as “widespread disclosure” or “highly offensive.” Much like existing state laws broadly regulating drone use, there is no all-encompassing federal privacy tort, so recovery is highly variable by jurisdiction.

The General Data Protection Regulation (GDPR), the premier privacy law established by the European Union (EU), plays a role in the business and operation of drones. Many U.S.-based multinational corporations (MNCs) market to European customers, and any data collected on EU residents is subject to GDPR. GDPR sweeps more broadly than U.S. privacy law and functions to protect personally identifiable information (“PII”) or any data that may be aggregated to constitute personal data. (For more information on GDPR and recent developments, see our previous blog posts here and here.) U.S. companies that use drones are already a step ahead if they are in compliance with GDPR.

Copyright Law as a Tool

It is worth noting that encroaching on intellectual property with a drone has significant implications. Consider drone footage of a television screen broadcasting an episode of “Grey’s Anatomy.” Although posting that video clip on YouTube infringes the network’s copyright, there are also more nuanced scenarios that may warrant a closer look. First, the amount of captured footage and the characterization of its usage likely necessitate a fair use analysis, which is very fact-specific.

It gets more complicated when a drone captures footage of a live entertainment event like an outdoor concert. While most professional sports organizations are protective of their broadcast copyrights, the Copyright Act does not permit them to own live footage captured by third parties. Regardless, the FAA expressly prohibits flying drones within three miles of stadiums from one hour before a sporting event until one hour afterward. This includes events for Major League Baseball, the National Football League, NCAA Division One Football, and various automobile racing organizations.

Although the FAA has issued temporary flight restrictions for most major sporting events, it has not done so for other outdoor events like concerts or high school football games. In fact, owners of a multipurpose venue may secure a restriction for a baseball game but not for a concert. As a result, organizers of these other outdoor events may not find protection for their broadcast copyrights unless they lobby their municipality to enact a favorable ordinance. However, the House of Representatives has introduced a bill called the Stadiums Operation under New Guidance (SONG) Act, which would “revise the meaning of ‘sporting’ to include all major events held in stadiums, including concerts.”

Such a law would provide protections for venue owners and the privacy of event attendees, but the fate of these parties remains in the hands of Congress. Furthermore, copyright law is generally not an avenue intended for the benefit of the privacy of individuals in their own homes or participating in public yet contentious events like protests.

There are other interesting copyright issues associated with drone use which are not related to privacy, and we hope to explore those in a future blog.

In Summary

The answer to increased privacy protection may be found in the Constitution, but the grounds are tenuous. While the Fourth Amendment may provide citizens with protection from government drone surveillance, that protection may be limited to situations in which drones fly below a certain altitude. Even so, the Fourth Amendment is limited to government action. The First Amendment cuts both ways—it protects outspoken individuals from drones that may encroach on their free speech, but it also protects the rights of media outlets to publish information freely. Congress could pass a drone privacy law without contravening the purpose of either constitutional provision, but current proposals have made minimal progress.

More importantly, the FAA, the agency primarily responsible for federal drone regulation, has expressly stated that it prefers to avoid regulating privacy. This does not bode well for drone-related privacy legislation, and we are unfortunately relegated to navigating the patchwork of state laws governing both the overall use of drones and privacy. While some privacy torts like intrusion upon seclusion appear to be an option for redress, different definitions of key terms by jurisdiction further complicate this patchwork. Copyright law provides recovery for broadcast rights, and the FAA has protected most outdoor sporting events, but this addresses a small portion of a larger problem.

Although drone technology is evolving quickly, its growing pervasiveness requires uniform law governing individual privacy. We will continue to monitor and keep you apprised of key technological and legal developments in this area. One would hope the few bills currently stagnating in Congress take flight.