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Eyes in the Skies: Are Drones Impacting Your Privacy?

Written by Posted On Tuesday, 06 February 2018 11:35
Airborne Camera Drone Airborne Camera Drone

In recent years, drones have become increasingly popular. Once only used by the military, we now see them being used by law enforcement agencies and businesses, including realtors and event photographers. As with most new technology, drone use is likely to become more widespread, as more businesses discover ways they can add value. Some people operate them simply for fun. We even now have the Selfly, which is a pocket-sized personal drone that can follow you around and take selfies.  In the 21st century, you can live in a flightpath without being near an airport!

Technology tends to advance before society can determine its effect. And, when it comes to technology and privacy, this is nothing new. Cell phones are a perfect example. They are now deeply and indispensably entrenched in our lives, but we still struggle to balance their convenience with the idea that we now carry personal tracking devices wherever we go.

Reasonable Expectation of Privacy

The reasonable expectation of privacy is a legal concept that addresses the places and activities in which a person has a right to privacy. Someone who intrudes on another person’s privacy under those circumstances can be held liable for that intrusion. This reasonable expectation of privacy can even occur in certain public places, as well as private. In fact, in 1967, the U.S. Supreme Court decided that the FBI could not use recordings of telephone conversations made from a public phone booth in a trial, because a person would have an expectation of privacy when speaking from one.

If there can be a reasonable expectation of privacy in a public phone booth, then certainly, that expectation of privacy exists in one’s own home. So, when a woman notices a drone hovering outside her bedroom window, this is a clear breach of her expectation of privacy in her home. However, there are now cases in which this has been reported.

But, does this reasonable expectation of privacy extend to our yards, as well? For example, suppose I value outdoor privacy so much that I go to great expense to put my residential property behind an eight-foot wall. The wall allows me to sunbathe without being seen by neighbors or from the street. Is it an invasion of my privacy if someone flies a drone over or near my property with a camera viewing me by my pool? Does it matter if this is accidental or malicious? Has this person diminished the value of my property by restricting my ability to use it as I wish, undisturbed?

The Law is Vague on Drones and Privacy

Before the era of air travel, it was clearly understood that a landowner owned all of the space above his property, with no height limit. Once air travel was available, that changed, and, in 1946, the U.S. Supreme Court acknowledged that the air is now a public highway. That, however, came with some restrictions, and property owners still have certain rights to a limited amount of airspace above their land. For example, the Federal Aviation Authority (FAA) only has jurisdiction over what occurs above 400 feet in the air. And, while the FAA has created some regulations concerning drone use, the agency is primarily concerned with air safety, so privacy has not been included as a concern in their regulations. As a result, the National Telecommunications and Information Administration (“NTIA”) developed Voluntary Best Practices for UAS Privacy, Transparency, and Accountability, to be considered in addition to any state and local laws, but they are only voluntary – little more than suggestions.

Government Concerns About Privacy and Drones

As of March, 2017, there were no federal laws that protect individuals from being spied on by drones. There are some state laws, but not many. And, some of the state laws have nothing to do with individual privacy rights. However, Massachusetts Senator Ed Markey and Vermont Representative Peter Welch were concerned that this ever-expanding technology would create privacy concerns. They introduced The Drone Aircraft Privacy and Transparency Act to address these issues.

Examples of their concerns include using facial recognition software on drones to gather information about shopping habits and selling it to advertisers. Or, using drones to photograph license plates in clinic parking lots where it is clear what services are performed, like dialysis, birth control, or abortion, and selling that information to insurance companies, political organizations, or other interested parties.

The Drone Aircraft Privacy and Transparency Act has not become law, as of yet. There are many complex issues involved with passing federal laws governing drone use, and those are out of the scope of this article. They involve, however, the impact that federal laws can have on existing state and local laws, and the ability of states and localities to make their own laws concerning drone use. So, as drones become more commonplace in our society as tools for business or governments, and as toys for hobbyists, this remains a new societal frontier, with many as yet unforeseen consequences and unanswered questions. However, it does appear to be yet another erosion of our ability to do anything without the assumption that we are being watched.

Disclaimer: The author is not a lawyer, nor a legal expert. The ideas put forth in this article are merely meant to stimulate thought and conversation about the growing impact of technology on personal liberty and privacy.

Jeffrey Koppel is a professional writer. He currently writes a twice-weekly home and personal security blog for Lock N More, a full-service 24-hour locksmith and security company, as well as writing for other publications. Lock N More's blog offers helpful tips on residential. commercial, and personal safety and security

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