Deluded If You Think You’re Secluded: Welcome to the Drone Age
Deluded If You Think You’re Secluded: Welcome to the Drone Age
To be published in the Daily Record the week of February 14, 2016
The civilian drone era has barely begun, and already heads are throbbing with the issues drones raise.
There are lots of juicy ones, including national defense, air safety, and conflicts between federal and state authority, but I only want to focus on privacy problems. Because – let’s face it – the drone is, first and foremost, a privacy killer. Whatever other attachments it may come equipped with, almost every drone has a camera. Wherever a drone can be positioned, therefore, it can see what there is to see. And mostly the point of the drone is to go somewhere one couldn’t conveniently and/or lawfully go before and see things one couldn’t hitherto have conveniently and/or lawfully seen.
Privacy the Way It Used To Be
Theoretically, everyone has what the courts call a “reasonable expectation of privacy” (meaning the government couldn’t snoop there without a warrant) and a “seclusion” (something private parties couldn’t intrude upon) in a lot of places where that expectation and that seclusion may not survive now. Take your house, theoretically your castle. There has been a presumption that things inside a house that couldn’t be readily seen from the street were protected by reasonable expectations of privacy, and seclusion.
But it was always complicated. For instance, assume I have a third-floor window without blinds. If there’s a third-floor window directly across the street, I’m exposing the contents of the room inside the window to the neighbor, and hence to the public, and have no expectation of privacy, at least to the extent of what can be seen through that opposite window. But up until now, if there were a building across the street that had no window that afforded the neighbor a vantage point, I might be secure. To be sure, at least since Florida v. Riley (1989), if the police could fly any aircraft past my window in airspace generally available for fixed-wing flights, they could take pictures. But the existence of that building across the way would pretty much preclude anything except a helicopter, not a fixed-wing craft, and might even make it hazardous for a helicopter to roar through the space between my building and my neighbor’s. That gap between the buildings would not be conventionally navigable airspace. So I might have had an expectation of privacy, and a protected seclusion, after all.
The drone is going to upset this equilibrium. The choice of fixed-wing aircraft as the standard for privacy and seclusion was a compromise based essentially on the facts that in our society no one expects our homes to be free from constant overflight at 500 feet or more, but conversely we also don’t expect helicopters roaring past residential windows at eye level. Drones, on the other hand, will likely be excluded from the altitudes at which fixed-wing aircraft fly, if only because we’ve had hundreds of near-misses between drones and aircraft already, and it is believed that a jet engine ingesting a drone would suffer catastrophic failure. But if the drones are all forced down close to the ground, and they continue their explosive proliferation (1 million purchased in 2015) we are going to get to the point where we expect to see them outside our windows almost every day.
From Fixed Wings to Tiny Rotors
Clearly, then, unless we pass laws that restrict where drone-users may take their craft, and what drone-users may observe and make images of when they get there, we are in for a drastic diminution in what, practically speaking, we may call private.
This multiplication of the vantage points seems to call for a corresponding expansion of the notion of curtilage, the legal name for an area others cannot enter without your permission. However, air travel has not been kind to that notion. Once it became technically possible for balloons and airplanes to overfly your property, it also became obviously absurd to maintain that you owned all the airspace above it.
The question instead became where the boundary would be drawn. Something akin to the notion of navigable waters became the standard. If the sky above your neighborhood could be safely flown above a certain level, then basically you didn’t own the sky above that level – and could be observed from it. But drones can usually safely fly far lower than that, and as we have seen it is shaping up that they must do so.
Carrying the logic of this old compromise to its logical conclusion, then, drones should not only be able to look in your windows from the other side of the boundary line, but should also be able to hop your fence. After all, the air on the near side of your fence is also navigable. To a drone.
And then – so is the air inside your house. A drone that is small enough could easily navigate the airspace in your open window or open door, after all. At some point some other principle has to come into play. It can’t simply be navigability; there must be a privacy principle.
What’s Left of Privacy?
A privacy principle: easy to state broadly, hard to articulate in detail. A rule that says that a drone can’t fly in your window would block the deployment of drones – and we’re sure to get them – that can fly in your window and deliver your Amazon order right to your desk. (Wouldn’t you prefer that, for the sake of security, to the drone dropping your latest purchase on the front porch where it could be easily stolen?) Of course, that kind of drone could be covered by some sort of business invitee exception, and probably would have some kind of cyber-password to disable your burglar alarm when it buzzes in. Still, when you’re allowing robotic strangers to fly into your house for any purpose, it certainly diminishes the expectation of privacy you might want to rely upon for other purposes.
For instance, let’s say you are running a business in illegal drugs from your third-floor desk. The cops bust in without a warrant and seize as evidence the heroin you were cutting on the desktop. You move to suppress because you had a reasonable expectation of privacy there. Then the prosecutor subpoenas Amazon’s records, and, lo and behold, one of their drones visited your desk yesterday to drop off the latest Taylor Swift CD! How private was that desk really? Well, my guess is you lose the motion to suppress.
On the flip side, what rights do drone owners have if they do overfly your house? Are they protected if you employ a “Second Amendment remedy”? There was an amusing case out of Kentucky recently where the defendant felt he had a “stand-your-ground” right to blow an offending drone out of the sky. The drone owner felt otherwise. Interestingly, the complaint in that case claimed the drone owner was privileged to overfly because he was only looking at the horizon, woods, and rooftops. So is the right to overfly contingent on whether or not the drone was playing the voyeur? What if the property owner had just happened to have been sunbathing in the nude on his rooftop? Would that have suddenly rendered the overflight wrongful?
Ah, drone law! We’re going to have fun! Just close your windowshades and cover up!
 A search for drones in Amazon on February 10, 2016 failed to reveal a single drone without a camera.
 I’ve not been able to nail down authoritatively the source of this requirement. From numerous secondary sources it appears that a 1981 Federal Aviation Administration circular, not even a federal regulation, on the subject of model airplanes, is being treated as the rule for drones, and that circular specifies a 400-foot altitude limit. The Federal Aviation Administration in 14 CFR 91.119 has established a minimum altitude of 500 feet or 1000 feet, depending, for all fixed-wing craft not taking off or landing. It follows that drones are being kept below fixed-wing craft.
 See T. Lehrich and D. Rifkind, Drones! A Regulatory Process Struggles to Keep Pace, 41 Administrative & Regulatory Law News, No. 2 at 4 (Winter 2016).
Copyright (c) Jack L. B. Gohn