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Opinion Drones and laws of general applicability

Our last post described the laws some states have passed to regulate private drone use. In addition to these new laws, existing common-law doctrines and statutes throughout the country serve to regulate people’s use of drones. Those laws serve to protect individual’s privacy, safety, and property.

First, the tort of intrusion upon seclusion provides a remedy for a person who claims a drone invaded her privacy. The tort has two necessary elements: (1) a person “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns,” and (2) “the intrusion would be highly offensive to a reasonable person.” As the comments in the Restatement (Second) of Torts section addressing intrusion explain, the tort is committed if the defendant pries into a private place or “otherwise invades a private seclusion that the plaintiff has thrown about his person or affairs.” In the words of the Restatement, an intrusion can be committed through “the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into his upstairs windows with binoculars.” Thus, intrusion claims have been lodged against people for illicit filming and eavesdropping. The key is that the alleged victim had a reasonable expectation of privacy at the time and in the place of the alleged intrusion. This tort would seem to cover people who claim that a drone recorded or photographed them in a private place, gathered private information about them, or otherwise invaded their physical privacy.

While the intrusion tort can give rise to liability for gathering information in a manner that invades someone’s privacy, the publication of private facts tort provides a remedy when private information is disseminated. A person commits that tort by publishing or broadcasting private information about someone else if the disclosure of that information would be highly offensive to the reasonable person and the information is not a matter of legitimate public concern. This tort only protects information about which people have a reasonable expectation of privacy and is circumscribed by the First Amendment protection afforded to the publication of truthful information about matters of legitimate public concern. Accordingly, if a drone filmed a person engaged in a private activity, and then the film was subsequently published, that person might have a claim for publication or private facts, as long as the publication did not address a matter of legitimate public concern.

A number of statutes also protect people from invasions of privacy, including invasions involving drones. For example, state wiretap statutes serve to restrict people from using drones to record audio. Under those laws, people who intentionally intercept audio communications when the speakers have a reasonable expectation of privacy could face civil and criminal liability. “Peeping Tom” and similar state statutes set out crimes when people film, photograph, or observe others in places or circumstances where they have reasonable expectations of privacy. Other criminal laws might apply as well. Over the past year, New York police arrested drone operators for reckless endangerment following incidents in which one operator lost control of his drone, another flew a drone over the U.S. Open, and yet another flew a drone to close to a police helicopter.

Some states have unique laws designed to protect privacy that seemingly would cover alleged invasions by drones. The California legislature, for instance, recently amended its controversial anti-paparazzi law with an eye toward ensuring that it covers drones. The amended law would create a private cause of action for “constructive invasion of privacy,” which is committed when someone “attempts to capture, in a manner that is offensive to a reasonable person,” an image or recording of a person “engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of any device” if the image or recording “could not have been achieved without a trespass unless the device was used.”

Existing laws also provide remedies for any physical harm that might be caused by drones. If a drone crashes into a person, that person can pursue claims for battery or negligence. Likewise, if someone used a drone to follow another person or to place them in reasonable fear of physical injury, criminal stalking and harassment statutes could come in to play.

Existing state law also protects people’s interest against having drones flying over their property, most notably through the law of trespass and nuisance. At common law, property ownership “extended to the periphery of the universe.” But, in 1946, the Supreme Court abrogated that common-law understanding in United States v. Causby.The Causby case involved a Fifth Amendment takings claim by a chicken farmer who lived near a runway used by military planes. In addressing that claim, the Court held that a landowner “must have exclusive control of the immediate reaches of the enveloping atmosphere” and that a taking occurs only when the government engages in activity that has a “direct and immediate interference with the enjoyment and use of the land.”

In the wake of Causby and with the proliferation of airplanes, state trespass long began to evolve. Now, the Restatement provides that “flight by an aircraft” constitutes a trespass if “it enters into the immediate reaches of the air space next to the land” and “interferes substantially with the [owner’s] use and enjoyment of his land.” While state laws vary on trespass through the air, Restatement commentary explains that “it is an actionable trespass . . . to fire projectiles or to fly an advertising kite or balloon through the air above [land], even though no harm is done to the land or to the possessor’s enjoyment of it.”

The law of nuisance also serves as a potential check on drone operations. A person can assert a nuisance claim, and seek an injunction, by showing that someone has committed an intentional and unreasonable invasion that interferes with a property owner’s enjoyment of his land. Courts have allowed nuisance claims in some instances when a property owner is regularly subjected to flying objects. For example, property owners have used the law of nuisance to seek redress and injunctions against golf balls regularly flying onto their property because an adjoining driving range has not fixed a broken net. Courts permit these claims because there is a continuing possibility that a ball could be hit onto the private property. This same theory could be applied to drone operators.

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Drones are not flying into entirely lawless territory. Although the protections and remedies vary from state to state, there are a number of pre-existing laws that can help guide the integration of drones into domestic airspace. In our final piece, we will discuss why these existing laws may provide a sufficient framework for providing remedies for alleged wrongs, as potential uses of drones evolve, the technology develops, and the FAA eventually issues regulations.

The Federal Aviation Administration has reportedly granted seven movie and TV companies permission to use drones for filming. This would mark the first time businesses world be able to operate the unmanned aircraft in populated areas. (Video: Reuters)