At the 2010 White House Correspondents’ dinner, then President Obama joked, that Sasha and Malia were big fans of the Jonas brothers, however, he cautioned, “boys, don’t get any ideas— I’ve got two words for you ‘Predator Drones’—you will never see it coming.”1

Although this joke was well-received by the audience, many parents fail to see the humor. In July 2015, a father in Kentucky spotted a drone hovering over his backyard where his two daughters were sunbathing.2

In response, rather than make a joke, he grabbed his shotgun and shot the drone out of the sky.3 This incident is not isolated to Kentucky. Similar incidents have been reported in California, Connecticut, New Jersey, West Virginia and Florida, to name a few.4

Despite these examples, there are countless reasonable, legal and appropriate reasons for private citizens to use UAV devices or drones. Although rural populations are not known for standing at the forefront of technological revolutions and appreciating that there are more persons who associate rural living with “unplugging” or a desire to be left alone, it is the rural populations that demonstrate the most benefit and largest interest in drone technology. Drone technology provides the opportunity for private citizens to monitor large areas of land with minimal resources. Whether monitoring farm fields for crop health, irrigation or weeds, fence maintenance or monitoring livestock, drones offer efficient and cost saving solutions to farmers.5 The same can be said for law enforcement seeking to observe large crowds, monitor large areas for criminal activity or surveil grounds for possible drug running or poachers.

However, drone technology also feeds into voyeuristic tendencies. Gaper’s delays at traffic accidents happen multiple times a day, some people can make rubbernecking an art form, although they would probably prefer to call it “people watching.” It is not uncommon when visiting a residence in a high rise in Chicago to see a pair of binoculars or a telescope near a window. Obviously, the city is much too bright for star gazing and the only thing observable from the window is a person in the neighboring high rise. Few people would admit the voyeuristic reason for having these items near the window. However, people who acquire drones may very well fall victim to a similar thought process. At first, the drone may appeal to those individuals who are intrigued by the new technology. However, the device’s recording capability and unrestricted movement provide an unparalleled opportunity to become a silent observer.6 After all UAVs were invented and evolved into technology with the dual purpose of being a surveillance weapon.

This article will not seek to explore the ethical implications of drones or analyze the intentions of those who own them. Further, the paper will not address the implications of UAV technology to the FAA. Instead, this submission will suggest that drones, as used by private citizens are consistently challenging individual privacy rights. Once established, this submission will go on to discuss the current privacy law landscape and then seek to discuss how the states (as opposed to the federal government) are in the best place to respond to this new technology.

In order to have a meaningful discussion on this topic, it is necessary that certain actions be taken. First, terms must be defined. Next, a brief history of the technology will provide some relativity and then an overview of certain privacy laws will seek to reasonably confine the parameters of this discussion. Let us begin.

DEFINITION: DRONE v. UAV

At the outset of this article, the use of the term “drone” and “UAV” have been used interchangeably. Unfortunately, this is not strictly accurate. UAV is to drone what mammal is to human; although all drones are UAVs, not all UAVs are drones. UAVs include not only drones, but can also include robot planes, pilotless aircraft, and remotely piloted vehicles.7

A UAV is an aircraft that may fly without the presence of an onboard human pilot and may operate under remote control or autonomous programming.8 A drone is an unmanned craft that is guided remotely.9 Both can be equipped with recording devices.

HISTORY

While drones have been used for decades by the military to spy, communicate, and attack places abroad, their current and potential uses are increasing among federal, state, and local agencies, as well as private actors.10 The U.S. Navy can be credited for the initial UAV. The UAV was conceived during World War I when the Navy developed an aerial torpedo prototype.11 Thereafter, in 1917, Charles F. Kettering developed the Kettering Aerial Torpedo, nicknamed the “Bug.”12 Although the Bug could detonate approximately 180 pounds of explosives with remarkable accuracy, the U.S. Army Air Service never used this aircraft in combat, and lack of funding prevented further development.13

UAV development slowed until the Navy requested the development of a jet-powered aerial target for gunnery practice and air-to-air combat training.14 As a result in 1951, the Ryan Firebee was created.15 The military recognized its multiple uses and, over time, subsequent generations of the Firebee evolved from target practice to reconnaissance and became invaluable to the US Military in the Vietnam War.16

The United States was not the only country with a desire to create a device that would provide reliable, operational intelligence. In the 1970’s Israel developed the “Scout” and “Pioneer.”17 The usage of these UAVs would prove instrumental in the war in Lebanon in 1982.18

Throughout the 1980’s and the early 1990’s military spending and budgeting would have a marked impact on UAV technology and research.19 However, a lack of results slowed the enthusiasm and, drastically reduced funding.20 The CIA, largely influenced by the War in Bosnia, found a way to circumvent the budget issue and reinvigorate the charge.21 The CIA, frustrated over the poor quality satellite intelligence over Bosnia, sought a plane that could provide a persistent aerial presence and real-time surveillance.22 The CIA’s efforts to improve the UAV led to the development of the Predator. First used in 1994, the Predator had an extended range and did not require the operator to be in the same region or even continent, as the drone.23 Later advancements to the Predator would include a de-icing system, reinforced wings, and a laser-guided targeting system.24 These advancements would be necessitated by the fact that the Predator was eventually weaponized.25

The Predator, although still in use, has fostered the creation of newer, more accurate, more efficient and more deadly tools, like the Reaper.26 The Reaper has nearly nine times the horsepower of the Predator and holds more than fifteen times more ammunition.27 The use of UAVs by the military and in the war on terror has continued through Yemen, Pakistan and Somalia.28

It is without surprise that while the US government has continued to employ and expand its use of UAVs to protect the country, UAVs have caught the attention of other organizations. Law enforcement organizations first sought to use UAVs in the 2000’s.29 Law enforcement officers can use UAVs to monitor hostage situations, gather evidence, or pursue fleeing suspects.30 The U.S. Department of Homeland Security (DHS) utilizes UAVs to police the nation’s borders.31 However, the laws regulating UAV usage differ state to state.32

UAVs have found a multitude of applications to the commercial and private sectors. These applications include agricultural implications, such as monitoring soil erosion and crop maturity to monitoring moisture levels and oversight of crop health.33 UAVs have climatological implications allowing for topographic mapping, measurement of geophysical processes and aerosol levels and forecasting.34

In 2010, the Parrott AR Drone was introduced at the Consumer Electronic Show is Las Vegas and, as the saying goes, “the crowd goes wild.”35 This UAV marked a new genre, a smartphone-controlled drone for consumers.36 Thereafter, in 2013, the Amazon CEO revealed a planned future service—delivery by drone called Prime Air.37 The first delivery by Prime Air was effectuated in December 2016.38

Today, UAVs are available as kits for private individuals to purchase and build to their own specifications. These homemade and personalized UAVs can carry live-feed and recording video imaging devices while only costing a few hundred dollars. These devices allow the user to take video record from various heights and relay information.

The UAVs expansion into the private market has been delayed largely because of the restrictions set in place by the Federal Aviation Administration (FAA). However, market and political pressure have forced changes to these rules. On February 14, 2012, President Obama signed the FAA Modernization and Reform Act of 2012, which instructed the FAA to safely and efficiently integrate UAVs into the national airspace system by creating six test ranges.39 Thereafter, in 2015, the FAA announced a rule requiring the registration of small unmanned aircraft.40 In 2016, the FAA promulgated additional rules, but the door was open and the drones had already arrived.41 Slowly but surely, the FAA rules regulating the usage of these small unmanned aircrafts have relaxed. The FAA continues to voice safety concerns, but not without allowing consumers and commercial entities the right to pursue their hobby or cost saving delivery/monitoring programs.42 In 2016, an estimate was offered that 2.8 million consumer drones were sold in the United States, with revenue of $953 million.43 Aside from safety and the fear that a drone may collide with a passenger plane, the second largest concern relating to UAV technology is privacy.44

In fact, The American Civil Liberties Union (ACLU) outlined these issues in a letter to the FAA by stating the following:

[UAVs] can carry facial recognition and license plate scanning software. Small UAVs can be programmed to maneuver through windows, perch and stare, and fly in swarms. Using recently-developed “ubiquitous navigation” technologies, UAVs can accurately navigate inside of homes by incorporating atmospheric pressure sensors, radios, and other weak location indicators, which can provide a more accurate location when used in concert. They can also be outfitted with robotic arms to carry objects into or remove objects from various places.45

OVERVIEW OF APPLICABLE PRIVACY LAWS

The US regulates privacy with a sectoral approach, recognizing laws that implicate specific industries.46 These federal protections include application of the First Amendment right to speak anonymously and freedom of association.47

In addition to the federal approach, the states have also promulgated a large number of privacy laws, both criminal and civil.48 Tort law, codified in the civil laws, is primarily state law.49 Privacy torts generally include a claim for invasion of privacy codified in four distinct causes of action: public disclosure of private facts, intrusion upon seclusion, false light, and appropriation of name or likeness.50 Privacy torts may also include causes of action for breach of confidentiality, intentional infliction of emotional distress, defamation through libel or slander and negligence.51 In addition to the civil arena, many breaches of individual privacy rights can lead to criminal penalties.52 For example, many states have criminalized blackmail, “Peeping Tom” activity or the secret capture of elicit images.53

This submission will focus on the claims for invasion of privacy and the four causes of action generally contained therein. These four claims can be defined as follows:

  1. Public disclosure of private facts. The public disclosure of a private fact, the disclosure of which is offensive to a reasonable person of ordinary sensibilities and the facts disclosed must not be newsworthy.54
  2. Intrusion upon seclusion. One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.55
  3. False light. One who gives publicity to a matter concerning another that places the other before the public in a false light if the false light in which the other was placed would be highly offensive to a reasonable person, and the actor had knowledge of or acted in reckless disregard as to the falsity of the publicizes matter and the false light in which the other would be placed.56
  4. Appropriation of name or likeness. One who appropriates for their own use or benefit the name or likeness of another.57

There is minimal case law addressing claims for an alleged invasion of privacy against a private individual for use of UAV technology that does not, in some way implicate a municipality or government function. Nonetheless, there are three basic factual frameworks that pose the greatest source of discussion for this debate, they include the following:

  1. The Peeping Tom. A father spotted a drone hovering over his backyard, where his two daughters were purportedly sunbathing.58 He took out his shotgun and shot the drone down.59 Later he ruminated that “[w]e don’t know if they’re pedophiles looking for kids, we don’t know if they’re thieves. We don’t know if it’s ISIS.”60
  2. The Hobbyist. A stranger set an aerial drone into flight.61 The drone flew onto private property.62 The property belonged to a husband and wife.63 After several minutes, the wife looked out her third-story window and saw a drove hovering a few feet away.64 The drone had a camera that was transmitting images that the stranger was viewing through a set of glasses.65 The husband approached the stranger on the sidewalk and asked him to not fly the drone near their home.66 The stranger insisted that it was legal for him to fly the drone over their yard and adjacent to their windows.67 The stranger claimed to be doing “research.”68 The husband and wife contacted local law enforcement who failed to respond and eventually the stranger left.69
  3. The Newsworthy Recorder. While celebrating the team’s Stanley Cup win outside the Staples Center the hockey fans noticed a drone buzzing above.70 The drone was knocked down and smashed.71 The drone (or what is left of it) was taken to the Police Department for its owner to claim.72 The police indicated that flying a drone in public is not illegal.73

DO PRIVACY TORTS PROVIDE A REASONABLE RESPONSE TO UAV-RELATED CLAIMS?

As this discussion will show, states, rather than the federal government, are in the best position to legislative UAVs in their communities. Further, among the torts for invasion of privacy, UAV usage by a private individual is most likely to give rise to a claim of intrusion upon seclusion.

THE PEEPING TOM

Regardless of the means by which the intrusion is performed, if an individual intrudes upon the solace of another, they would be liable for an invasion of privacy under the theory of intrusion upon seclusion. Whether technology is used to intrude or not and the specific type of technology is irrelevant. For example, reporter and TV personality Erin Andrews prevailed in a civil suit that alleged, among other claims, invasion of privacy by way of intrusion upon seclusion.74 Ms. Andrews sought relief after a “Peeping Tom” succeeded in modifying the peephole such that he recorded video of Ms. Andrews while she was inside her hotel room without her knowledge.75

The technological means by which the individual obtained the video of Ms. Andrews was not of import. Instead, the court appropriately focused on the elements of cause of action. Ms. Andrews was entitled to a reasonable expectation of privacy within her hotel room, the individual had intruded upon her solace and she was caused harm.

In another example that failed to receive a scintilla of publicity, the Mangelluzzis allege that their neighbors, the Morleys invaded their privacy by videotaping and photographing them on numerous occasions while they “are in their own backyard.”76 The Mangelluzzis allege that, despite installing fencing, the Morleys continued to videotape them.77 The Mangelluzzis pled causes of action for intrusion upon seclusion, defamation, false-light invasion of privacy, intentional infliction of emotional distress, and civil conspiracy.78 The Morleys characterized their claim as involving activity visible from the street by a passerby, but the court disagreed.79 It is important to note that the court placed an emphasis on the facts surrounding the alleged intrusion and specifically noted that the intrusion occurred in the fenced yard, this area was not readily accessible for viewable by passersby.80

In these instances, a recording was obtained of an individual and the individual was found to have a reasonable expectation of privacy in the area where they were recorded. The observations could not have been made by a person without the assistance of the technology or without taking actions to circumvent a physical obstacle to their view. The technological means by which the recording was obtained was not relevant to the determination of whether the claim was actionable. Therefore, whether the technology in question was a modified peephole, a video camera or a UAV, in a factually similar situation, the same results would be reached.

THE HOBBYIST

In the Hobbyist example, it must be emphasized that this submission is intended to focus on a cause of action premised upon an invasion of privacy. To the extent that there exists a cause of action for trespass or whether the aircraft exception applies is not considered here. It is further of import to note that it is assumed that the stranger does not make the video obtained through the UAV public and is instead maintains the video for personal use.

In 2014, a Seattle woman was terrified to see a drone outside the window of her 26th floor apartment while she was in the process of changing clothes.81 82 The operator (contrary to the story in the first example) was quick to apologize and identified himself as an individual employed to take aerial pictures of real estate and architecture.83 However, stories of this nature are on the rise. The question is whether a colorable cause of action can be asserted.

Again the answer is yes as the tort of intrusion, is the most relevant here.84 As stated previously, the individual suffering the intrusion had a reasonable expectation of privacy. The UAV operator’s intent is not relevant to a determination of liability. What is frighteningly apparent is the ease at which drones conduct surveillance on normal people in their homes and on their property. This ability to monitor individuals from the sky, from either far away or unexpected locations (outside the 26th floor window), without the target ever knowing of the surveillance—permits the observation of people in ways never before imagined.

THE NEWSWORTHY RECORDER

Under the example given, minor variations could have a major impact on whether tort liability could be triggered. In the example given, the celebration following the Stanley Cup victory takes place within the public domain and no person partaking in that celebration, especially the celebration on a public street, would have a recognizable argument to assert their right to privacy. However, the question becomes less clear if the celebration is publicized, an individual’s likeness is discernable and the story is captioned as part of criminal action or if a person is portrayed as being intoxicated or under the influence of other narcotics.

Therefore, this example, as posited, renders the least likely example of a colorable claim. However, slanting the facts slightly could potentially bring this claim under the purview of public disclosure of private facts, false light or appropriation.

ARE UAV-RELATED CLAIMS SUBJECT TO FIRST AMENDMENT PROTECTION?

There are two ways in which UAV technology implicates the First Amendment. In the first instance, the UAV operator may assert a claim that the photographs or video obtained by the UAV are protected First Amendment speech. In a second, and in a somewhat related argument, an operator may also argue that his or her use of the UAV and, specifically the ability to maneuver the UAV to view and record events is protected First Amendment speech.

By way of an example, in Rivera v. Foley, Plaintiff, a photographer and editor at a local television station, alleges that on February 1, 2014, he responded to an accident site and began operating his drone after learning of the accident via a police scanner.85 Although Plaintiff remained outside of the area denoted as the crime scene, he maneuvered his drone into the demarcated crime scene area by causing it to “hover over the accident scene … at an altitude of 150 feet.”86 Plaintiff alleges that the police officers demanded that he cease operating the drone over the accident site and leave the area despite the fact that he was not in violation of any state or federal law or regulation at the time he was allegedly stopped and told to leave.87 Plaintiff alleges the police officer contacted his employer and “complained” that he had interfered with the investigation and compromised “the crime scene’s ‘integrity.’88 Plaintiff alleges that “[a]s a direct and proximate result” of Officer Foley’s contact with Plaintiff’s employer, he was suspended from work “for a period of at least one week.”89 The court was taxed with determining whether Defendant’s actions violated Plaintiff’s First Amendment rights. However, the court was able to avoid the ultimate determination finding instead that Defendant was entitled to qualified immunity.90 In fact, the application of qualified immunity has been applied by the Third and Fourth Circuits.91

The courts have spent some time focusing on the means of gaining information and not whether the information, video or photographs, themselves are subject to First Amendment protections. In fact, over fifty years ago, the Supreme Court stated that the right to speak does not carry with it the unrestrained right to gather information.92 The Supreme Court has emphasized that although the right to free speech entails a corollary right to “receive information and ideas,”93 this does not mean one can take measures to extract information from any source where she might find it. The First Amendment only gives us a right to receive information from “a willing speaker.”94

Therefore, in order to consider whether the UAV is entitled to First Amendment protections, one might consider (1) what type of recording it is, whether it is static image capture or video, (2) whether the recording is about a matter of public concern versus a private interest; (3) what is the purpose of utilizing the UAV and/or obtaining the photo or recording (artistic expression, recording a newsworthy moment); and (4) whether the individuals subject to the recording are in a public space, have acquiesced to being recorded or are participating in some newsworthy endeavor at the time of recording.95

It is imperative that when considering the application of the First Amendment to UAV recordings the judiciary employ a scalpel and not an ax. As the act of banning drone photography or videography prioritizes the privacy rights over the First Amendment rights of the photographer or videographer.96 Such prioritization is not recognized nor permitted by the law.

DO UAV-RELATED CLAIMS WARRANT THE INTRODUCTION OF A NEW FEDERAL LAW?

The states are at the forefront of introducing laws that are most applicable to their current needs to address usage and application of UAV technology. States are in the best position to introduce privacy laws that address personal privacy and societal privacy norms within their communities. State privacy laws have been used to govern private video and audio, like the video and audio UAVs may record.

The idea of allowing each state an opportunity to initiate privacy and UAV related laws that are reflective of the values of that state’s citizens and needs is not novel. In fact, many states have already begun to introduce drone-specific legislation.97

A state that is comprised of a mostly rural population may wish to have a more relaxed legal oversight of drone usage while a more metropolitan state with a higher concern of terrorist implications may wish to have a ban of drone usage within a reasonable distance of their downtown structure, bridges or government centers. Introduction of a federal law may run afoul of state wiretapping laws, Peeping Tom laws, video voyeurism laws, and paparazzi laws that are currently in place, at a state level to regulate privacy-intrusive photography, videography, and sound recordings.98

Allowing experimentation by and through state legislation may eventually lead to the introduction of federal legislation, but more likely, the technology will change and the concerns based upon societal norms will evolve. More importantly, allowing states freedom to enact laws that are suited for their residents will best balance the individual’s right to privacy with the application of this new technology.

CONCLUSION

In some ways, UAV technology can be analogized to GPS technology. Both were initially conceived by the military. Both are a dual-use technology. GPS was originally developed to provide geolocation and time information. UAV technology was initially conceived as a weapon that was commissioned to act as a tool for gathering intelligence. Both have great beneficial impacts on both military and civilian applications. Both applications have caused concerns among privacy advocates.99 Both applications can be governed by the current body of laws and did not require the introduction of a new federal law.

Various attempts have been made at a federal level to introduce new laws that would serve to create rules to ensure privacy rights and oversight for drone usage.100 However, these bills have met with great debate and demonstrated little success. As demonstrated through the proliferation and success of wiretapping laws, Peeping Tom laws, video voyeurism laws, and paparazzi laws, the states are best suited to respond to this new technology and to determine what, if any, new laws need to be introduced to balance individual privacy with expression and speech.

The concerns about UAV technology are not unique or novel. The fact that some people are outraged over the fact that this technology is causing harm because it offers users an opportunity to spy on individuals is, at best, ironic. The technology was conceived as a weapon to gather intel. The technology is doing exactly what it was created to do and the states stand in the position to ensure that the benefits of this technology are not overshadowed by the potential harm.

 

Notes

  1. https://www.youtube.com/watch?v=WWKG6ZmgAX4
  2. http://www.slate.com/articles/technology/future_tense/2016/05/drone_privacy_is_about_much_more_than_sunbathing_teenage_daughters.html
  3. Id.
  4. Id.
  5. http://dronelife.com/2014/12/30/5-actual-uses-drones-precision-agriculture-today/
  6. In 2009, House Representative Peter King introduced H.R. 414, the Camera Phone Predatory Alert Act. The intention of this Act was to require all mobiles with cameras to emit a tone or other sound audible within a reasonable radius of the phone. This tone could not be disabled. Although the bill was never enacted, it demonstrated recognition of the legislature to the problem posed by the prevalence of cameras in mobile technology. Unfortunately, drone/UAV technology takes this concern to the next level. An act of this nature may protect a peeping Tom from taking photos in a dressing room, but a drone positioned high in the sky or outside an apartment window is too far away from its unsuspecting victim for a mandatory tone to be noticeable or deter a peeping Tom.
  7. Elizabeth Bone & Christopher Bolkcom, Cong. Research Serv., Unmanned Aerial Vehicles; Background And Issues For Congress 1 (2003).
  8. Richard M. Thompson II, Cong. Research Serv., R42701, Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses, 2 (2012).
  9. https://www.ezvid.com/drone-vs-uav-whats-the-difference
  10. Muhammed El-Hasan, Businesses See Opportunity in Civilian Drones, but Regulations Stand In the Way, The Denver Post (Apr. 29, 2016), http://www.denverpost.com/ci_23522851/businesses-see-oppurtunity-civilian-drones-but-regulations-stand
  11. http://gizmodo.com/this-flying-bomb-failure-was-americas-wwi-cruise-missi-1184824802
  12. http://www.nationalmuseum.af.mil/Visit/MuseumExhibits/FactSheets/Display/tabid/509/Article/198095/kettering-aerial-torpedo-bug.aspx
  13. Id.
  14. The Ryan Firebee: Grandfather to the Modern UAV, Gizmodo http://gizmodo.com/the-ryan-firebee-grandfather-to-the-modern-uav-1155938222
  15. Id.
  16. Id.
  17. History Of Uav Development In Iai & Road Ahead, S. Tsach, 24th International Congress Of The Aeronautical Sciences, 2004, http://www.icas.org/ICAS_ARCHIVE/ICAS2004/PAPERS/
    PDF
  18. Id.
  19. History of US Drones, Ian Shaw. https://understandingempire.wordpress.com/2-0-a-brief-history-of-u-s-drones/
  20. Id.
  21. Id.
  22. Id.
  23. Id.
  24. Id.
  25. This submission will not delve into the complicated history surrounding the political implications of the weaponization of drones nor the ethical implications of targeted killings without human-intelligence.
  26. Air Force Fact Sheet, Reaper, http://www.af.mil/AboutUs/FactSheets/Display/tabid/224/Article/104470/mq-9-reaper.aspx
  27. Id.
  28. Id.
  29. Brian Bennett, Drones Tested as Tools for Police and Firefighters, L.A. Times (Aug. 5, 2012), http://articles.latimes.com/2012/aug/05/nation/la-na-drones-testing-20120805 NCLS, Current Unmanned Aircraft State Law Landscape, http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx (last visited May 2017)
  30. Id.
  31. DHS built domestic surveillance tech into Predator drones. CNet March 2, 2013. https://www.cnet.com/news/dhs-built-domestic-surveillance-tech-into-predator-drones/
  32. NCLS, Current Unmanned Aircraft State Law Landscape, http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx (last visited May 2017)
  33. Unmanned Aerial Vehicles: Examining the Security, Privacy and Regulatory Issues of Integration into U.S. Airspace. Evan Carr 2012, http://www.ncpa.org/pdfs/sp-Drones-long-paper.pdf
  34. Id.
  35. CES 2010: Parrot AR.Drone, Eli Hodapp, http://toucharcade.com/2010/01/06/ces-2010-parrot-ar-drone-an-iphone-controlled-quadricopter/
  36. Id.
  37. http://www.cbsnews.com/news/amazon-unveils-futuristic-plan-delivery-by-drone/
  38. http://fortune.com/2016/12/14/amazon-prime-air-delivery/
  39. See FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 332, 126 11, 73 (2012).
  40. https://www.faa.gov/news/press_releases/news_story.cfm?newsId=19856
  41. https://www.faa.gov/uas/media/Part_107_Summary.pdf and https://www.nytimes.com/interactive/2015/technology/guide-to-civilian-drones.html?_r=0
  42. http://knowbeforeyoufly.org/ and https://www.wired.com/2012/03/opinion-calo-drones-dogs-privacy/
  43. https://www.nytimes.com/interactive/2015/technology/guide-to-civilian-drones.html?_r=0
  44. Id.
  45. Letter from Christopher R. Calabrese, Legislative Counsel, Am. Civil Liberties Union, to Michael Huerta, Adm’r, Fed. Aviation Admin. (Apr. 23, 2013), available at https://www.aclu.org/files/assets/comment_to_faa_on_ domestic_drone_test_site_privacy. pdf. In that letter, the ACLU also urged the FAA ensure that “test site operators have experience with ethics and privacy issues.” Id.
  46. The Growing Problems with the Sectoral Approach to Privacy Law, Daniel Solove Nov. 13, 2015 https://www.teachprivacy.com/problems-sectoral-approach-privacy-law/
  47. Id.
  48. Id.
  49. Id.
  50. An Overview of Privacy Law, Daniel Solove and Paul Schwartz GW Law Faculty Publications & Other Works, 20 http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2424&context=faculty_publications
  51. Id.
  52. Id.
  53. Id.
  54. http://www.dmlp.org/legal-guide/publication-private-facts
  55. SeeRestatement (Second) of Torts 652B
  56. SeeRestatement (Second) of Torts 652E
  57. SeeRestatement (Second) of Torts 652C
  58. http://www.slate.com/articles/technology/future_tense/2016/05/drone_privacy_is_about_much_more_than_sunbathing_teenage_daughters.html
  59. Id.
  60. Id.
  61. https://www.theatlantic.com/technology/archive/2013/05/so-this-is-how-it-begins-guy-refuses-to-stop-drone-spying-on-seattle-woman/275769/
  62. Id.
  63. Id.
  64. Id.
  65. Id.
  66. Id.
  67. Id.
  68. Id.
  69. Id.
  70. http://www.latimes.com/local/la-me-drone-hobbyist-20140622-story.html
  71. Id.
  72. Id.
  73. Id.
  74. http://hospitalitybusinessnews.com/wp-content/uploads/2015/10/ErinAndrewslawsuit.pdf
  75. Id.
  76. Mangelluzzi v. Morley, 40 E.3d 588, 594 (Ohio Ct. App. 2015)
  77. Id.
  78. Id.
  79. Id.
  80. This fact is of specific importance because it highlights the fact that the drones can access and record events that are not within the public domain or otherwise visible to the human eye, without the assistance of technology.
  81. See, e.g., Devin Coldewey, Drone Outside Window Spooks Seattle Woman But Cops Say No Law Broken, NBCNews(June 24, 2014), http://www.nbcnews.com/tech/tech-news/drone-outside-window-spooks-seattle-woman-cops-say-no-law-n139626.
  82. See, e.g., Lindsey Bever, Seattle woman spots drone outside her 26th-floor apartment window, feels ‘violated’, Washington Post(June 25, 2014), http://www.washingtonpost.com/news/morning-mix/wp/2014/06/25/seattle-woman-spots-drone-outside-her-26th-floor-apartment-window-feels-violated/
  83. Id.
  84. See, g., People v. Mayoff, 729 P.2d 166, (Cal. 1986). See, e.g., Florida v. Riley, 488 U.S. 445, 455 (1989) (“Because there is reason to believe that there is considerable public use of airspace at altitudes of 400 feet and above, and because Riley introduced no evidence to the contrary before the Florida courts, I conclude that Riley›s expectation that his cartilage was protected from naked-eye aerial observation from that altitude was not a reasonable one. However, public use of altitudes lower than that—particularly public observations from helicopters circling over the curtilage of a home—may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air safety regulations.”).
  85. Rivera v. Foley, 2015 WL 1296258, at *1–2 ( Conn. Mar. 23, 2015)
  86. Id.
  87. Id.
  88. Id.
  89. Id.
  90. Id.
  91. SeeKelly v. Borough of Carlisle, 622 F.3d 248, 261-62 (3d Cir. 2010) (holding that a right to record police officers was not clearly established at time of arrest); Szymecki v. Houck, 353 Fed. App› 852, 853 (4th Cir. 2009) (same).
  92. Zemel v. Rusk, 381 U.S. 1, 17 (1965)
  93. Martin v. Struthers, 319 U.S. 141, 143 (1943).
  94. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 756 (1976)
  95. See e.g. Marc Jonathan Blitz et al., Regulating Drones Under the First and Fourth Amendments, 57 Wm. & Mary L. Rev. 49, 91 (2015)
  96. Margot E. Kaminski, Drone Federalism: Civilian Drones and the Things They Carry, 4 Cal. Rev. Circuit 57, 63–64 (2013)
  97. See Civ. Code Ann. § 1708.8 (West 2015)
  98. John Villasenor, Observations from Above: Unmanned Aircraft Systems and Privacy, 36 J. L. & Pub. Pol›y. 457 (2013)
  99. https://www.thebalance.com/gps-and-your-privacy-1947216
  100. 635 (114th): Drone Aircraft Privacy and Transparency Act of 2015

 

This article originally appeared in The Practical Lawyer.

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Nicole D. Milos

Partner, Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC

Nicole D. Milos is a partner with the Chicago law firm, Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC. She focuses her practice on risk management and defending liability claims. Ms. Milos is a graduate of John Marshall Law School (J.D., 2001), and a LL.M candidate in the Information Technology and Privacy Law program at John Marshall Law School.

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