PROTECTING HOMEOWNERS' PRIVACY RIGHTS IN THE AGE OF DRONES: THE ROLE OF COMMUNITY ASSOCIATIONS.

Author:Farber, Hillary B.
 
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ABSTRACT

Homeowners' notions of privacy in their dwellings and surroundings are under attack from the threat of pervasive surveillance by small civilian drones equipped with highly sophisticated visual and data-gathering capabilities. Streamlined rules recently issued by the Federal Aviation Administration ("FAA") have unleashed technological innovation that promises great societal benefits. However, the new rules expose homeowners to unwanted snooping because they lack limits on the distance drones may operate from residential dwellings or time of operations. Indeed, our society should not expect a federal agency to deal effectively with the widely diverse issues of drone technology facing the states, given the different needs of urban and rural communities. The FAA wisely anticipates adopting a multi-layered regulatory framework to address privacy issues. State and local governments, by contrast, are lagging far behind in regulatory efforts, and Fourth Amendment jurisprudence has not kept pace with the privacy issues raised by drones operating in residential areas. Municipalities are best prepared to craft reasonable limitations to safeguard their residents, but few are doing so at the neighborhood level. Fortunately, the sixty-eight million homeowners living in condominium and homeowner associations and cooperatives ("community associations") may look to such quasi-governmental organizations for nimble and responsive action where they live. Community associations have authority and powers similar to municipalities and constitute the level of government closest to homeowners. This Article demonstrates that community associations, home to twenty percent of America's homeowners, constitute the level of government most familiar with characteristics of their neighborhoods and are the best positioned entities for safeguarding the privacy expectations of their homeowners as society adjusts to the uncertain and accelerating world of drone technology.

TABLE OF CONTENTS Introduction 624 I. FAA Rules: Safety, Not Privacy 629 A. Unleashing Technology 630 B. FAA's Focus on Safety 634 C. Enforcement: More Safety Than Privacy 635 II. Surveillance and Privacy Expectations Under Current Law 637 III. State and Local Laws to Protect Privacy Will Not be Preempted by the FAA Rules 645 A. Matters Preempted by FAA 648 B. Matters Not Preempted by FAA 649 IV. State and Local Governmental Regulatory Activities 650 V. Community Associations in the Governmental Role 655 A. Community Associations Resemble Local Government 657 B. Rulemaking and Financing of Community Associations 658 1. Reasonable Rules 658 2. Financing the Association 659 C. Protecting Privacy in Community Associations 660 Conclusion 663 INTRODUCTION

Perhaps more than any other new technology of previous eras, today's rapid evolution of drone technology diminishes the degree of privacy to which Americans are accustomed. Drones, or unmanned aircraft systems ("UAS"), are capable of flying hundreds of feet in the air while amassing images and data of people and places on the ground. The drone's aerial perspective, along with its ability to hover, gives unprecedented access to places that were once shielded from public view.

In view of drones' extraordinary surveillance, data-gathering, and data-dissemination capabilities, privacy advocates are concerned that the new FAA rules for commercial drone operators expose individuals to pervasive surveillance. (1) Criminal prosecutions are emerging in courts as controversies grow between drone operators and citizens who object to being surveilled. (2) These cases will test whether state and local laws adequately ensure basic privacy expectations and norms in the face of drone technology. The extraordinary popularity and access to drones is evidence of how fast-paced and pervasive developments in technology can expose the limitations of existing laws and challenge prevailing views on what is considered a violation of privacy.

With forecasts that the number of civilian drones in the United States will increase to as many as 4.3 million by 2020, (3) the practical implications and regulatory landscape of drones are changing rapidly. The long-awaited FAA Rules ("Rules"), effective August 29, 2016, provide a comprehensive framework for integrating small (under fifty-five pounds) drones into the national airspace by commercial users. (4)

The FAA Rules replace an uncertain and lengthy process of obtaining a waiver, and have unleashed a remarkable growth in drone activity as well as other new sensing devices used to gather information. (5) These highly anticipated Rules give a green light for users and applications that promise considerable societal benefits. Commercial users include real estate agents, insurers, surveyors, utility and pipeline operators, contractors, researchers in agriculture and national resources, emergency responders, universities, media, videographers, and many more. According to industry projections, over the next ten years the Rules are expected to generate investment of more than eighty-two billion dollars for the United States economy and create more than one hundred thousand new jobs. (6)

According to the FAA, the Rules are intended to ensure safe and efficient drone operations while also promoting technological innovation. (7) Notwithstanding their stated goal, the Rules impose few limits on the manner of operation aimed specifically at protecting privacy. Drones may operate anywhere within the pilot's visual line-of-sight, any day of the week, and at any time during daylight hours. (8)

Individuals and residential dwellings are not exempt from these intrusions on privacy. It is common to see news stories of people alarmed by the sight of a drone hovering around their homes and backyards, with cameras peering in windows or invading the privacy of balconies. (9) Visions of Hitchcock movies are conjured up as drones replace birds in nightmarish attacks. Individuals and society face difficult challenges in adjusting to new technology and unidentified privacy boundaries. According to the CEO of Google X:

Without clear knowledge of the future potential or future unintended negative consequences of new technologies, it is nearly impossible to draft regulations that will promote important advances--while still protecting ourselves from every bad side effect... Our societal structures are failing to keep pace with the rate of change. (10) Homeowners are particularly vulnerable because the FAA Rules do not address how close to residential dwellings a drone may fly, nor do they restrict what personal data may be collected or how it may be stored or disseminated. The Rules allow drones to operate every day during daylight hours, with no limitations for holidays, weekends, and other times of day when more people are home from work and school and expect privacy. Instead, homeowners must look to state and local government for protection. However, if state and local governments fail to act, or act too slowly, residents of planned communities, condominiums, and cooperatives--generically known as "community associations"--are well positioned to act through their self-governance powers. (11) Created under state laws and recorded governing documents, these associations resemble municipalities. They are empowered to adopt rules and regulations to protect the interests of their homeowner members and the residential community as a whole. (12) Some community associations have features to promote privacy and security, such as suburban "gated communities" and their functional equivalents in urban areas--buildings with limited access and door attendants. (13)

Community associations resemble mini-democracies, as homeowners elect their governing boards and delegate a broad range of powers and duties to the association for governance of the community and protection of their interests. (14) Like local government, community associations have the ability to limit intrusions by drone operations for the purpose of safeguarding homeowner privacy. (15)

Associations are better positioned to safeguard homeowners' privacy interests because they are closer to their residents than any other governmental level and more familiar with the needs and characteristics of their communities. (16) Community associations can be more nimble and responsive to their constituencies than state or local governments. As of 2015, an estimated sixty-eight million Americans (one in every five) live in one of the country's 338,000 communities that have some form of owners' association, many of which are situated in urban areas. (17)

This Article examines the impact of the FAA Rules on individual privacy rights and how private community associations, akin to local government, may protect homeowners' privacy. Indeed, due to an association's familiarity with the physical characteristics of its community and the needs of its residents, the association may be in a better position than local government to adopt rules that are tailored to the particular neighborhood. What reasonable restrictions may associations impose on commercial drone operations within their boundaries, such as limitations based on time, place, and manner? Would such rules promote legitimate property and privacy expectations of homeowners? Would they be preempted by the FAA Rules?

Part I examines the FAA Rules that pertain to drone operation, examining the FAA's surrender of privacy protections to state and local lawmakers. Part II provides an analysis of how current law does not assure protections for individual homeowners from drones flying above and around their homes. Part III explains how, based on a delegation of authority from Congress to the FAA, the FAA Rules will not preempt state and local laws that are designed to protect privacy. Part IV examines how drones have galvanized state and local lawmakers to enact laws to promote privacy. Finally, Part V explains how the structure and...

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