DRONES, PHOTOGRAPHY AND PRIVACY

November 17, 2014

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by Nancy Wolff, DMLA Counsel  

At the annual PACA Digital Media Licensing Association conference last month, one of the most talked about sessions was on drones and its many uses for photographers. In addition to the opportunity to see a real drone equipped with a camera on stage and experiment with a miniature version, the issue of federal and state regulations regarding the use of drones and photography was raised.

The Federal Aviation Administration (FAA) is the. U.S.  agency that has authority to regulate and oversee all aspects of American civil aviation. The FAA announced last June that it will miss the September 2015 deadline set by Congress to establish regulations allowing expansion of unmanned aerial vehicles (UAVs) or drones into commercial use. The FAA’s current position is that flying drones for any purpose other than as a hobby requires the agency’s approval and it prohibits any devices from flying above 400 feet. Previously in 2013, the FAA issued a roadmap for future regulations, a comprehensive plan for integrating drones into national airspace and designated six operational test sites to serve as laboratories for developing drone policies and technologies. This provided the FAA with an opportunity to confront privacy issues raised by drones, but the administration resolutely circumvented the issue by stating that its mission was safety and that the FAA would not be taking a stance on how the federal government should regulate privacy, in addition to advising each test site to comply with local privacy laws. The FAA’s uncertain regulatory timeline and lack of attention to privacy issues consequently led to increasing promulgation of state regulations and restrictions focusing on private drone use, which has spurred fiercely contentious debates over privacy considerations and implications.

Privacy laws are traditionally state made laws, whether by statute or common law. While the safety of air traffic is federal, each state has the right to protect the privacy of its citizens, within the confines of the First Amendment’s prohibition against restrictions on freedom of the press and freedom of expression. To date, 36 states have introduced legislation – both proposed and enacted – to protect individuals’ privacy. Of these 36 states, the legislation is active in 22 states and enacted in 10 states.  The bills range in breadth and specificity in terms of who is protected, the type of information collected from the drones that is protected and the permissible uses of information. However, the vast majority of the bills require a probable cause warrant before law enforcement is allowed to use the drones to collect information in an investigation. Most recently, California updated its privacy laws by enacting its “anti-paparazzi law”, banning the use of camera drones in circumstances in which the subject of the photograph has a reasonable expectation of privacy. Oregon addressed private rights by creating a cause of action for landowners of private property against drone operators who fly their devices under 400 feet over the owner’s property, after receiving notification of the landowner’s non-consent. Tennessee, North Carolina, Texas and Idaho restrict drones’ ability to film or photograph private property and ban the use of drones for surveillance.

These state laws and regulations subsequently raised protests about their controversial nature, particularly in regards to First Amendment implications and public policy considerations. The regulations are viewed as functioning in direct opposition to the basic legal principle that there is no right to privacy in something open to public viewing and that people are permitted to photograph others in places where there is no reasonable expectation of privacy, regardless of whether consent has been obtained from the subjects. The main rebuttal against states regulating drones flying above private property is the idea that filming or photographing the property can be accomplished just as effectively with the use of a non-drone device operated by an individual driving by the property or using Google Map’s services. Additionally, the undefined and overbroad nature of state regulations raise concerns that it may have the negative effect of chilling newsgathering and similar legal conduct protected by the First Amendment. Furthermore, pre-existing laws of general applicability, such as claims for battery, trespass, nuisance and harassment, arguably already provide the protections and remedies for the privacy concerns that the state regulations are targeting and attempting to resolve.

Despite the FAA’s detached approach to privacy issues and proposed rules on small drones, there is federal legislation pending in Congress. One such regulation is the Preserving American Privacy Act, which would prohibit private drone users from obtaining data in “highly offensive” ways that violate reasonable expectation of privacy. The Drone Aircraft Privacy and Transparency Act would require drone users to submit a “data collection” statement to the FAA outlining what data will be collected, used and retained as well as whether the data will be sold to third parties. There is also the prospect of an executive order issuance tasking the National Telecommunications and Information Administration with the responsibility of developing privacy guidelines for commercial drones operating in U.S. airspace. However, much like the present state of FAA promulgated regulations, the potential and pending federal legislation are similarly ambiguous and uncertain. What is considered “highly offensive” or under what situations one has an expectation of privacy can vary by individual and is dependent on the circumstances. For example, those living in dense urban areas presumably have a lower expectation of privacy than those living in more rural areas.

Any regulations will likely give rise to litigation in an effort to interpret or narrow the restrictions. As an association, we will try to keep an update of the regulations and provide information as it is forthcoming. The following resources are available.

Resources

  • Information on Current Legislation by State

o   ACLU: https://www.aclu.org/blog/technology-and-liberty/status-2014-domestic-drone-legislation-states

o   NCSL: http://www.ncsl.org/research/civil-and-criminal-justice/2014-state-unmanned-aircraft-systems-uas-legislation.aspx

  • Use of Photography Drones in Journalism

o   http://medialaw.unc.edu/resources/drone-journalism/

o   http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-spring-2013/drone-journalism-begins-slo

o   http://petapixel.com/2014/08/27/take-get-drones-banned/