Privacy in a Time of Drones, 0621 COBJ, Vol. 50, No. 6 Pg. 38
| Author | BY RONALD M. SANDGRUND |
| Position | Vol. 50, 6 [Page 38] |
FEATURE TORT AND INSURANCE LAW
BY RONALD M. SANDGRUND
This article discusses potential invasion of privacy and other tort liabilities arising from drone and other unmanned aerial vehicle activities.
Big Brother has been a concern since Orwell's 1984, but today it's Big Business and the 12-year-old kid next door flying a drone who may pose an equal threat to our privacy.
Drones afford many benefits, some quite extraordinary, including assisting with aerial mapping, education, real estate and cropland management, urban planning, power line and pipeline inspection, wildfire management, disaster response administration, emergency medicine deliveries, telecommunications, movie filming, journalism, doorstep package delivery, refinery monitoring, and recreational fun.1 They also present some potential societal detriments, serving as accomplices in drug smuggling, terrorism, assassination, and voyeurism.2 Even their lawful use comes with some invasion of privacy risks.3
This article focuses on the risks drones present to our solitude and sanctuaries; potential tort liability arising from drone use; remedies for non-governmental invasions of our privacy, person, and place; and practical considerations that might guide lawyers who work in this novel and evolving field. The article briefly describes the history of federal and state drone regulation and preemption issues; discusses the intersection of Colorado privacy, trespass, and nuisance laws and drone activities; and examines the lingering legal uncertainties accompanying drone technology advances.
Tort liability for physical injury to property or bodily injury to persons is beyond this article's scope. Similarly, the article does not discuss Fourth Amendment warrant, search, and privacy concerns relating to government drone deployment.4
Drones Today (and Tomorrow)
Drones are improving technologically at the speed of smartphones, not airplanes. In fact, by the time you read this article, drone technology will have advanced significantly since this piece was conceived during the 2020 pandemic summer.
Today's drones serve as platforms for "intelligent sensor suites, high-definition gigapixel cameras, live-streaming media, global positioning systems, facial recognition and biometric programs."5 Some drone features are only readily accessible to governmental actors, such as the military, law enforcement, and their contractors, due to the feature's cost and technical complexity. Facial recognition has already been integrated into many security camera systems. While drones incorporate a Global Positioning System (GPS) as part of their autopilot mechanisms, their GPS serves the same purposes as that found in cell phones, although most drone GPS systems are more accurate.
Drone laws will change as drones and their satellite technologies change. Reality will steer these changes as drones become as ubiquitous as cellphones.6 In April 2021, an estimated 872,000 drones were in use in the United States, about 43% commercially and 57% recreationally, with over 222,000 Federal Aviation Administration (FAA) certified remote pilots.7 One commentator urges that "there is no other technology that is as accessible to the general public and poses as tangible a threat to privacy and safety as the drone."8Others would argue that this is a gross overstatement and that smartphones and other personal electronic devices, which are widely used and generally not feared, pose a much graver privacy threat.
Still, drones the size of insects—micro-aerial vehicles (MAVs)—outfitted with cameras and microphones are already in use, and not just in James Bond films,9 although their use is typically limited to the military due to their cost and complexity. Before long we may miss some drones' bothersome whirring, which alerts us to the drones' presence and that we might be filmed or recorded. Flying micro-drones may make noise indistinguishable from flying insects or make no perceptible sound at all.
Overview of Drone Regulation
Federal, state, and local laws regulate drones and other unmanned aerial vehicles (UAV) and unmanned aircraft systems (UAS).10 These regulations are likely to evolve, not only in response to drone-related technological progress, but also with experience, as drones become a part of the fabric of our lives.
Federal Law and Regulations
In the mid-20th century, the U.S. Supreme Court held that for property owners to fully enjoy their land, they "must have exclusive control of the immediate reaches of the enveloping atmosphere" and"own[] at least as much of the space above the ground as [they] can occupy or use in connection with the land."11 The Court left open the parameters of these "immediate reaches." Drone technology has brought this issue to the fore.
In 2016, the FAA finalized its initial drone regulations, including what is commonly referred to as Part 107.12 On October 5, 2018, President Trump signed the FAA Reauthorization Act of 2018 (the Act).13 Building on the 2016 regulations, the Act primarily addresses recreational and commercial use of UAVs, including pilot training and FAA remote pilot certification (and waiver of the same); airspace authorization;14 UAV registration; maximum and minimum height, weight, clearance, speed, and line of sight requirements; limits on operating over other persons; risk-based consensus safety-standards; and airport safety and air-space hazard mitigation, among other topics.15 The FAA declined to expand its jurisdiction over safety to encompass privacy issues, deferring to existing state law and other privacy protections.16 The Act is a work in progress, as industry stakeholders, interest groups, and the federal government lobby to shape this law through consensus regulation, drawing on everyday testing and experience.
In January 2021, the FAA released for publication its final remote identification (Remote ID) regulations." Remote ID will provide information about drones in flight, such as the drone's unique identity, location, altitude, and control station or take-off location. Authorized public safety organization employees can request the identity of a drone's owner from the FAA. These features may help provide answers to questions like, "Where is that annoying buzzing coming from?"18 While the ordinary person might view this rule as offering push back to a drone led invasion of their privacy, drone operators see it as an invasion of their privacy. Thus, it is expected that any FAA regulations will generally focus on safety, not privacy.19
Congress has indicated a desire for close co-operation between federal and state authorities over drone regulation. The federal government wants local resources to help enforce federal drone laws. The needs of interstate commerce, and preferences of the Amazon.coms of the world, will influence and shape not only federal law, but also any working partnership between and among state and federal governments. Therefore, tort liability protections are likely to arise.
The Colorado Regulatory Scheme
Colorado presently has no statutes specifically regulating drone activity, although one regulation makes it unlawful to use drones "to look for, scout, or detect wildlife as an aid in the hunting or taking of wildlife."[20] Colorado's "Peeping Tom" law also may apply to some drone-based surveillance.21 Local ordinances in Aurora, Boulder, Cherry Hills Village, Denver, Louisville, and Telluride govern recreational and/or commercial drone use, and other municipalities are considering adopting their own laws.
Federal and State Law Preemption
The legal framework for drone use must account for federal preemption of state and local laws, which occurs when: (1) Congress expresses a clear intent to preempt state law; (2) there is an outright or actual conflict between federal and state law; (3) compliance with both federal and state law is physically impossible; (4) there is an implicit barrier within federal law to state regulation in a particular area; (5) federal legislation is so comprehensive as to occupy the entire field of regulation; or (6) state law stands as an obstacle to the accomplishment and execution of Congress's full objectives.22 Similarly, Colorado statutes may preempt local law.23
As drones become more embedded in everyday business and residential life, and their impact on interstate commerce rapidly expands, the need for a uniform regulatory framework and consistent and effective enforcement increases. The potential for conflict among federal, state, and local commercial needs and privacy expectations will similarly increase. Industry is likely to push for statutorily explicit or implied preemption of local regulation; this has already occurred with regard to FAA regulation of drone use within certain geographic and altitudinal parameters. Drone operators complain anecdotally of situations where FAA regulations require drones to fly below 400 feet, yet some local regulations require them to fly at or above 500 feet.24
Critically, if Colorado's and other states' statutory and common law remedies for drone intrusion and abuse prove inadequate, people may "take matters into their own hands."25 And "where the law is perceived as a fairly blunt tool, people will increasingly resort to self-help remedies."26 While criminal statutes offer some protection from electronic "listening in,"27 they offer much less protection from "looking in." Presently, there are few easy remedies concerning intrusive drone activity.28 Because the FAA considers drones to be aircraft, 18 U.S.C. § 32 prohibits damaging or destroying drones, and using a firearm to attempt the same may violate...
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