In earlier posts, we described philosophical approaches that policymakers might pursue in regulating drones and what approaches some state legislatures already have enacted to regulate private drone use. Here, we consider whether Congress or state legislatures should pass more laws on private drone use. At this point, as drone technology is only beginning to develop and its capabilities are only beginning to be understood, legislators should tread lightly.
To be clear, the FAA should promulgate reasonable drone regulations – and promulgate them soon. Drone operators need rules of the road. For too long, there has been none. That should change.
The FAA’s foot-dragging has created a regulatory vacuum. State legislatures have started to fill that void. To date, however, the laws that states have passed, while perhaps well-intentioned, are generally misguided. They either fail to meaningfully address any perceived harm or sweep too broadly.
Take the laws Oregon and Tennessee passed to regulate flight over private property – Oregon by creating a cause of action for landowners when drones fly under 400 feet, and Tennessee by making it a crime to fly over private property below navigable airspace. At first blush, these laws might seem quite useful. But do they really address whatever harm they seek to prevent? If the concern is disrupting people on their property, there does not seem to be a real difference between a small drone flying 350 feet above the property and 410 feet. Indeed, a small drone likely could fly far less than 100 feet above someone’s property without interfering with the use or enjoyment of that property.
And, if the concern is the possibility of filming or photographing what is on the property, that too can be done whether the drone flies 300 feet or 450 feet high. Indeed, drones do not even need to fly over property to snap photos of anything or anyone on the property. That can be done from the airspace over an adjoining public street.
The laws like those passed by North Carolina, Texas, and Tennessee that restrict filming or photographing private property are similarly flawed. There is no reason a landowner should have the right to sue someone for snapping a photo of what is visible to any person driving by the property or to anyone who looks at Google maps.
The laws seeking to protect people’s privacy also seem troubling. The Texas, Tennessee, and North Carolina laws all bar people from using drones for “surveillance.” Yet, in those laws, that key term is not defined. This vagueness casts a long shadow that threatens to chill newsgathering and other legitimate conduct.
The Idaho law – which restricts the ability to use drones “to photograph or otherwise record an individual, without such individual’s written consent, for the purpose of publishing or otherwise publicly disseminating such photograph or recording” – is both too broad and too narrow. The law’s overbreadth is striking. It ignores the basic notion that there is no right to privacy in something that is open to public viewing. It runs roughshod over the equally well-established legal principle that people are free to take photographs of others in places where there is no reasonable expectation of privacy, whether their subjects consent or not. In Idaho, that principle apparently no longer applies . . . except for when it does. The law bars people from snapping photos with drones, but allows people to take the same photos of the same subjects in the same places from a blimp, a bridge, or the tenth floor of a building in Boise. This distinction makes no sense.
The Idaho law’s narrowness is also striking. It bars people from using drones to photograph someone for the purpose of publishing the photo. But, a drone can be used to snap the same picture, so long as the drone operator does not intend to share it. This distinction seems illogical and could lead to absurd results. For instance, the law gives no remedy to a person who is surreptitiously photographed by a drone in a private place if the photo is for the drone operator’s personal use. Yet, the statute outlaws the photography if the subject is in a public place if the drone operator intends to publish the photo. The first scenario seems like an invasion of privacy, but, under the law, it is not actionable. Meanwhile, the second does not invade any privacy, but could give rise to a claim for statutory damages and attorney’s fees.
These critiques identify just some of these laws’ shortcomings and dangers. What makes these laws even more troublesome, however, is that they seem unnecessary.
As we discussed in one of yesterday’s posts [Eugene, please insert link once Post 7 is live,], existing laws of general applicability already protect people against — and provide remedies for — the harms these states are seeking to prevent. Some examples: If a drone operator invades a person’s privacy by photographing him in a private place, that person could pursue a claim for intrusion. If that private photograph were then published, he might be able to pursue a claim for publication of private facts (assuming the publication does not involve a legitimate matter of public concern). If a person were injured by a drone, she could file a claim for battery. And, if a drone interferes with her enjoyment of her property, she could file a claim for trespass or nuisance. In most places, the common law and criminal codes that have developed over generations addressed the harms to privacy, property, and safety that might arise from new technology, whether that technology is a camera, car, camcorder, or drone.
When it comes to private use of drones, legislators should not rush to enact new laws. Drones present myriad potential uses and benefits, and the technology needs room to get off the ground (pun intended) before we inadvertently restrict its growth. Legislators need to carefully scrutinize how various policy proposals might impact the nascent drone industry and whether those proposals throw impractical roadblocks in the way of legitimate and beneficial drone operations.
Congress and state legislatures would be well-advised to pay close attention to how drone technology is used and what rules the FAA ultimately adopts. To that end, the lessons learned from the FAA test sites and from foreign advances in drone integration will be instructive.
Legislators also should allow existing laws to serve their remedial and regulatory functions. Then, they should consider whether the reality of domestic drones requires any further supplementation.
At this point, doing anything else threatens to stifle innovation and trample long-held freedoms.
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We would like to thank Eugene and everyone at Volokh Conspiracy for their hospitality this week. We are grateful for the opportunity to share our thoughts on the emerging legal landscape governing drones and look forward to continuing the discussion as both the law and the technology develop.