As drone uses increase—ranging from hobbyist flights to law enforcement agencies conducting surveillance operations—legal questions related to privacy are also likely to increase.

What constitutes an unlawful search while observing criminal activity? How much of a right to privacy does someone have from a next-door neighbor’s drone? What happens to data collected by commercial unmanned aircraft operators?

Kevin Moon, an aviation attorney and senior counsel for the Clyde & Co law firm in the San Francisco area, says that the increased use of unmanned aircraft systems (UAS) will lead to increased privacy claims against government entities, private citizens and businesses.

“I became interested in drones because they represent a revolutionary new technology that is poised to change our lives,” Moon said. “This technology will change how we send and receive packages, survey the environment, monitor crops, and conduct law enforcement, to name a few. Some of these changes are already happening. As a lawyer who specializes in aviation and aerospace, this is a fascinating new area, particularly because the law is currently in flux.”

Moon discussed drone-related privacy issues from the legal perspective with UAS Magazine.

Do existing laws adequately deal with the drones and privacy issue or are laws needed that apply specifically to drones?

This issue has received a lot of attention because many of the existing privacy laws have not yet been applied to claims involving drones. Typically, privacy issues are left to the states to legislate. Existing laws, which are primarily rooted in the common law (law created by judges’ rulings, rather than by the legislature), are likely adequate for dealing with garden-variety tort claims, such as nuisance, trespass and invasion of privacy.  Some legislatures have modified their existing statutes to make clear that they apply to drones.  For example, California recently amended its invasion of privacy laws (dubbed the „anti-paparazzi law“) to make clear that a physical invasion of privacy tort includes not just knowingly entering onto the land of another person to photograph or record a private activity, but also entering into the airspace above that land.

Another area that has received less attention, but where additional legislation may be needed, is data collection and retention. Some opponents of drone-based government surveillance have called for strict protections regarding how the government can use the data and information it collects. For instance, if law enforcement uses a drone during a stakeout and happens to capture private or sensitive information about the suspect’s neighbors, what happens to that information? Most people would want to know that the information won’t become available to the public and will eventually be destroyed.  There is proposed federal legislation that is attempting to address some of these issues, including requiring commercial drone operators to be more transparent about what data they are collecting and how it will be used or disseminated.

It seems that there’s a significant rift between how drone operators view the privacy issue and how most of the public sees it. Can the law provide clarity that satisfies public concerns while protecting the rights of drone operators?

I think there is currently a perception problem with drones. As a new technology that is not yet ubiquitous, many people view them as noisy toys that can be used for nefarious purposes, like spying on your neighbor. Most people don’t know that drones are already being used in a variety of positive ways, like in search and rescue operations. Once drones become as essential as cell phones and personal computers, privacy concerns will start to wane as the public becomes accustomed to the benefits drones can provide. A similar process happened with smartphones. Our phones expose vast quantities of our private data yet most people are more than willing to trade their information for access and convenience.

How do privacy issues differ for law enforcement as opposed to someone flying a drone as a hobby or for commercial purposes?

Law enforcement is focused on investigating criminal activity and gathering evidence. This implicates the Fourth Amendment, which protects citizens from unreasonable searches and seizures.  The touchstone of Fourth Amendment analysis is whether a „search“ occurred.  Except in limited circumstances, warrantless searches violate the Fourth Amendment and evidence collected during the search cannot be admitted in criminal proceedings. This means that law enforcement is concerned with collecting evidence in such a way that it will not be excluded at trial. 

On the other hand, private drone operators don’t have the same Fourth Amendment concerns that law enforcement does. They are more concerned with not violating privacy laws to avoid civil liability, though violations of these type are less likely to make it into court. People like drones, in part, because they provide a different, birds-eye perspective of our world. Private and commercial operators need to appreciate that people don’t have the equivalent of walls or fences in the sky, so a lot of discretion resides with whomever controls a drone.  

Is there a need for the courts to get involved in setting legal precedents for drones and privacy? If so, can you prioritize which precedents should be dealt with first?

The courts are already seeing very interesting drone-related legal issues being litigated around the country. For example, my colleagues were recently involved in a landmark court ruling that addressed the right of states and municipalities to regulate drone flights. The case involved an Newton, Massachusetts, ordinance that effectively banned drone flights over the city without property owners’ prior permission, citing privacy concerns. The court’s decision agreed with the plaintiff’s argument, which we supported, that federal regulation of the nation’s airspace preempted all operational and flight-related sections of the ordinance. This was the first preemption ruling (when federal law takes precedence over a conflicting law at state or local level) regarding drone flight, but it certainly won’t be the last. 

Beyond that, more pressing issues will come to the courts as they arise. Drones will perform tasks and interact with the public in novel ways, so existing laws will apply and be broken. The public will undoubtedly object if certain drone behavior is unregulated, so the legislature will pass new laws as necessary. The order and speed at which these matters will come before the courts isn’t clear, but one thing is sure: how and to what extent drones can be regulated are important legal issues that will continue to be heavily litigated both in the court system and in the court of public opinion.

Some in Congress appear to believe that the FAA should be involved in enforcing privacy law. Do you agree with this? Ultimately, whose responsibility is it to enforce privacy laws?

The FAA’s mission is to provide a safe and efficient national airspace system. Enforcing privacy laws is not in its DNA, and it certainly does not have the infrastructure or resources to do so. The FAA has consistently taken the position that privacy rights issues primarily should be handled at the state and local level, and I don’t see any compelling reason why this should change. 

At the end of the day, it’s all of our responsibility to enforce privacy laws by bringing relevant civil claims, electing representatives who pass sensible laws, and ensuring that law enforcement agencies are subject to appropriate oversight. 

Beitrag im Original auf, mit freundlicher Genehmigung von The UAS Magazine automatisch importiert, Original in englischer Sprache. Der Beitrag gibt nicht unbedingt die Meinung von UAV DACH e.V. wieder.