Drones, Privacy, and Air Rights

(Update: Thanks to Insta for the link – readers who want the scoop from an actual property law professor should read Co-Conspirator Ilya’s post on this topic, here. My thanks to him for weighing in.)

By now many will have seen the news stories reporting how an animal rights group sent up a small drone with cameras attached to take video of a group of hunters out on a pigeon shoot.  The hunters responded to the drone by shooting it down.  Like many in the blogosphere, I was mostly amused, and tweeted that no one seemed to have told the animal rights group that the first rule of drone warfare is … establish air superiority.  Okay.  We also have many other stories of private organizations – NGOs of one kind or another, as well as commercial enterprises (leave aside the fact that FAA regulations currently permit only hobbyist use of UAVs) – using, or attempting to use, drones in order to monitor various activities that they find objectionable.  Some of this takes place in the United States, some of it over public land and some of it over private land, and some of it takes place outside the US, including attempts to monitor whaling at sea.

These private activities, whether by advocacy groups or commercial enterprises or just ordinary individuals, conducted over private property raise important questions that will have to answered one way or another.  One is whether it is lawful for a private party to conduct surveillance from the air over private property.  If it is, then a further question is whether countermeasures – and what kinds – might also be lawful.  One can always move indoors, and then we will have further, technology-driven debates over what kinds of sensors would be lawful that might permit private parties to “see” inside buildings.  We might envision “passive” countermeasures, such as jamming devices – about which the FCC and other regulatory agencies might have something to say.  We might have active countermeasures – shoot it down – about which, presumably, law enforcement and other agencies might also have something to say.

Zenpundit has some thoughts about the pigeon shoot shoot-down, which are quite interesting, but do not answer the legal questions raised here.  Private parties over private property, engaged in aerial surveillance.  Is it lawful and in what ways?  And, lawful or not, what countermeasures are permitted to the property owner, if any?  And what general bodies of law and regulation are implicated here – property law, trespass, nuisance, etc.  Comments are open, but I’m particularly interested in informed comments that run to the possible questions of law here.  More general comments are better directed to Zenpundit’s site.

Note in advance that the pigeon shoot story is different from the precise question I am asking here.  According to the animal rights group, the drone was over public property (although this was simply one side of the story).  There is a further interesting question of whether it would ever be lawful to shoot down a surveillance drone over public property, on some theory of nuisance or trespass or the like affecting private property. But please leave that possibility in order to deal with the more obvious and conceptually prior question – what about a surveillance drone in air space over private property?

Added:  Looking back at Zenpundit, I see he has linked to a good NYT article that actually sets out to answer at least a few of the questions asked above, and noting a bunch for which there are no answers.  (Also, the article has the good sense to consult Stanford’s Ryan Calo, who has thought harder about these questions than anyone I know.)  Here’s a bit from the Times:

 

….A new federal law, signed by the president on Tuesday, compels the Federal Aviation Administration to allow drones to be used for all sorts of commercial endeavors – from selling real estate and dusting crops, to monitoring oil spills and wildlife, even shooting Hollywood films. Local police and emergency services will also be freer to send up their own drones.

But while businesses, and drone manufacturers especially, are celebrating the opening of the skies to these unmanned aerial vehicles, the law raises new worries about how much detail the drones will capture about lives down below – and what will be done with that information. Safety concerns like midair collisions and property damage on the ground are also an issue.  American courts have generally permitted surveillance of private property from public airspace. But scholars of privacy law expect that the likely proliferation of drones will force Americans to re-examine how much surveillance they are comfortable with.

“As privacy law stands today, you don’t have a reasonable expectation of privacy while out in public, nor almost anywhere visible from a public vantage,” said Ryan Calo, director of privacy and robotics at the Center for Internet and Society at Stanford University. “I don’t think this doctrine makes sense, and I think the widespread availability of drones will drive home why to lawmakers, courts and the public.”

Some questions likely to come up: Can a drone flying over a house pick up heat from a lamp used to grow marijuana inside, or take pictures from outside someone’s third-floor fire escape? Can images taken from a drone be sold to a third party, and how long can they be kept?

Drone proponents say the privacy concerns are overblown. Randy McDaniel, chief deputy of the Montgomery County Sheriff’s Department in Conroe, Tex., near Houston, whose agency bought a drone to use for various law enforcement operations, dismissed worries about surveillance, saying everyone everywhere can be photographed with cellphone cameras anyway. “We don’t spy on people,” he said. “We worry about criminal elements.”  Still, the American Civil Liberties Union and other advocacy groups are calling for new protections against what the A.C.L.U. has said could be “routine aerial surveillance of American life.”

Under the new law, within 90 days, the F.A.A. must allow police and first responders to fly drones under 4.4 pounds, as long as they keep them under an altitude of 400 feet and meet other requirements. The agency must also allow for “the safe integration” of all kinds of drones into American airspace, including those for commercial uses, by Sept. 30, 2015. And it must come up with a plan for certifying operators and handling airspace safety issues, among other rules.  The new law, part of a broader financing bill for the F.A.A., came after intense lobbying by drone makers and potential customers….