The balance of effective drone regulation

February 5, 2015
Daily Journal

Although their conceptual origins lie in the realm of science fiction, drones are no longer mere fantasy. Rather, drones are becoming increasingly prevalent as their technology improves, prices drop, and uses proliferate. The government uses drones for a wide range of both foreign and domestic purposes. Private parties — both individuals and corporations — are increasingly getting in on the drone game for commercial and recreational uses. Although the applications for drones are limited only by our imaginations, drone operations must be conducted in a manner that respects safety, privacy and our constitutional rights.

FAA Regulations

The Federal Aviation Administration haspromulgated broad rules regulating the domestic use of drones by both private and public entities. In 2012, Congress passed the Federal Aviation Administration Modernization and Reform Act (FMRA) that instructed the FAA to devise rules for broad spectrum use of drones by 2015. The FAA has recently announced these rules are unlikely to appear until 2017. The FMRA did not explicitly mention privacy in its mandate, although the FAA has voluntarily assumed this as part of its jurisdiction.

Today, drones are used for commercial purposes on a limited basis and only with a permit. Private corporations — mostly defense contractors — have been authorized to operate drones for certain purposes. Yet, even with a permit, drones are limited to a weight of 25 pounds and must be operated within the eyesight of the operator during daytime use — and at an altitude of no more than 400 feet.

One practical consequence of these limitations is to severely restrict the use of drones in ways that protect the privacy rights of individuals. These restrictions also impede significant commercial uses. For example, the utility of delivery drones is undermined by the eyesight rule. One can imagine the scenario wherein a drone delivers a cardio defibrillator to a heart attack victim — with breath taking speed — saving the victim’s life. As drone technology improves, drones will have greater “sense and avoid” systems onboard that would obviate the need for line of sight restrictions, but will undoubtedly pose a much greater risk to the privacy of individuals.

It is anticipated that the FAA will balance privacy and constitutional concerns with the potential for significant positive contributions by drones. In doing so, the FAA must adopt rules that ensure that the utility of drones can be maximized while simultaneously ensuring that privacy, safety, and constitutional rights are protected. While the current regulations err on the side of caution and prevent widespread use of drones, the proper balance is to permit government and private parties to use drones but to impose civil and criminal liability where drones are used in an irresponsible, negligent or criminal manner.

The Fourth Amendment

Although drones are in wider use by the government than the private sector, this will probably flip-flop in the future. Currently, the U.S. Air Force, U.S. Army, Defense Advanced Research Projects Agency, FBI, NASA, local law enforcement, and various public universities use drones.

Government entities and agencies use drones for myriad tasks, including firefighting, engaging in search and rescue missions, and environmental documentations. Yet, the Fourth Amendment prohibits unreasonable searches and seizures, and clearly drones have the impressive capability for law enforcement to observe from heights and locations that could not be observed by traditional police efforts, including rotary winged aircraft operations. The question arises whether using drones to obtain evidence against suspects constitutes a search. This issue turns on whether there is a reasonable expectation of privacy, and the case law here is inconsistent. It appears the use of a drone to intrude upon a reasonable expectation of privacy and obtain information that, without the use of the drone, would have been private, cannot be obtained without a search warrant.

On top of this, law enforcement must abide by the FAA rules and the FMRA. Thus, from a governmental perspective, the use of drones is limited not by technology, but by law. Although this is a proper application of the precautionary principle — here, protecting privacy and safety where the potential harms caused by widespread use of drones are not yet known — it is easy to imagine that positive uses of drones may be obscured by inappropriate uses, which will ultimately lead to litigation in civil and criminal courts alike.

 “Newsworthy” Information

Unlike governmental entities, private individuals and corporations are not restricted by the Fourth Amendment. Rather, private parties are entitled to the protections of the First Amendment for free speech. This rings especially true when drones are used to garner photographs or videos of people at their homes which would otherwise be private. Although the use of drones may not intuitively trigger the protections of the First Amendment, Branzburg v. Hayes (1972) held that “[w]ithout some protection for seeking out the news, freedom of the press could be eviscerated.”

Yet, where should the line be drawn? Some drones that can be purchased at the local hobby shop can travel thousands of feet into the air, and are outfitted with high definition cameras resulting in photos and video with full sound (which have never before been available to a private person or entity) and the data acquired can be published to the world in real time or with a few stokes of a keyboard. Although prior restrictions on widespread documentations and intrusions into privacy were limited by technology, rather than law, developments in technology put the onus on the law to adapt to ensure that privacy is protected.

Meanwhile, while drones improve and people find lawful productive uses for them, the prevalence of negligent and criminal misuse is making news. Recently, a recreational drone crashed on the front lawn of the White House. Within the last 12 months, there have been reports of drones carrying drugs from Mexico into the U.S., and on one occasion, the attempt to carry drugs and a cellphone into a prison in South Carolina. The malicious imagination of the few will undoubtedly result in tortious and criminal wrongdoings — which will have an unfortunate impact on the majority of responsible, law abiding drone pilots.

Tort Liability

The common law of tort already addresses certain scenarios malfeasance applicable to the misused of drones. Drone usage resulting in the intrusion upon the privacy of individuals would be cognizable under several common law torts such as trespass, or one of two strands of invasion of privacy — intrusion upon seclusion or publication of private facts.

California’s Legislature has begun to address potential misuses of drones to violate individual privacy. As of Jan. 1, California Civil Code Section 1708.8(a) imposes liability where the plaintiff can demonstrate that the defendant: (1) knowingly entered on the land of another; (2) without permission; (3) in order to invade the privacy; (4) with the intention to capture any type of visual image, sound recording, or other physical impression; and (5) the person is in a personal or familial activity with a reasonable expectation of privacy. Several questions immediately arise. What does the legislature mean by “in order to” given that there is already an intent element? Does “capture” only apply to stored data or does it include transient data captured solely for the purpose of navigation? Would merely incidental data capture violate the statute? Undoubtedly, questions of interpretations regarding these new laws will abound.

Going Forward

Barring any sweeping ban against them, drones are here to stay. The immense potential for beneficial drone use by private and public parties militates against a per se ban. However, in developing drone regulations, legislatures must balance the public’s interests in privacy, safety, and constitutional concerns with the need to facilitate the awesome and beneficial uses of drones are fully realized.