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Jack L.B. Gohn: Welcome to the ‘Drone Age’

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.

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 they now  may not. 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. Up until now, however, 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.

Upset equilibrium

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 on the facts no one expects our homes to be free from constant overflight at 500 feet or more, but 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 (a million purchased last year) we are going to get to the point where we expect to see them outside our windows almost every day.

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 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 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.

Privacy principle

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, A rule that says that a drone can’t fly in your window would block the deployment of drones that can fly in your window and deliver your Amazon order right to your desk.

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.

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 window shades and cover up!

Jack L.B. Gohn is a partner with Gohn, Hankey, Stichel and Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.