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Droning On: Privacy in the Crosshairs

We’ve all seen drones in the past couple of years at parks and other open spaces. They’re revolutionizing film and documentary making with amazing aerial views. Crews working wildfires and floods are using them to survey damage and search for survivors. They’re fun for hobbyists and now a vital asset to rescuers. And if Amazon jumps through enough hoops, your future deliveries from them will be via drone.

But what if you’re in your home and you hear the high-pitched whine of a drone hovering over your backyard or property? In some neighborhoods this is getting to be a real and irksome issue. Particularly if the drone is wielding a camera, suggesting that a nosy neighbor or perhaps a stranger parked nearby is spying on you.

I remember taking a real estate course years ago and the instructor discussing the old notion of property ownership: “ad coelom et ad inferos” - Latin for "whoever’s is the soil, it is theirs all the way to Heaven and all the way to hell.” In other words, if it’s above or below your property, it’s yours.

Brian Farkas mentions this as well in a post on Nolo.com. He also goes on to state that this concept has all but disappeared from US courts in the 21st century, “now that common electrical wires and pipes run under our homes, and aircraft fly above them.”

A Kentucky man was arrested last year for shooting down a drone over his property, citing his right to privacy. The drone pilot/owner claims that he was flying the drone for the purpose of taking photos of a friend’s home, saying that the destroyed drone cost $1,800. According to CNN.com, property owner William Merideth was arrested and charged with first degree criminal mischief.

Merideth was unapologetic as his family was on the deck and his 16-year old daughter was sunbathing by the pool. The drone got as low as 10-feet above the ground under the property’s canopy of trees.

“It was hovering over top of my property, and I shot it out of the sky.”

“I didn't shoot across the road, I didn't shoot across my neighbor's fences, I shot directly into the air.” (CNN.com)

Similarly, in August 2015 a New Jersey man blasted a drone out of the air over his neighborhood with a shotgun. He was charged with possession of a “firearm for an unlawful purpose and criminal mischief.” He could possibly face up to 10 years in prison if convicted.

Writing on CNN.com, Bruce Schneier, a security technologist and chief technology officer of Resilient Systems Inc., says, “This is a trend … It’s illegal, and they get arrested.”

“Technology changes everything. Specifically, it upends long-standing societal balances around issues like security and privacy. When a capability becomes possible, or cheaper, or more common, the changes can be far-reaching. Rebalancing security and privacy after technology changes capabilities can be very difficult, and take years. And we're not very good at it.”

Schneier points out that a drone operator lost control of his craft in January and it crashed on the White House lawn; another was arrested for deliberately flying drone over the White House fence; another into the stadium where the US Open was being played. Not to mention drone-airplane near misses.

But as many commentators have said, technology – in this case drones – always out paces law. As such, under existing law it is illegal to shoot down a drone even if it is hovering over your own property. Why? According to one online article, the Federal Aviation Administration considers drones to be civil aircraft.

Blogger Daniel Terdiman, writes:

“Existing federal law and judicial rulings make it clear property owners do not enjoy unlimited privacy rights to their airspace. In fact, some believe that drones — quadcopters, octocopters, and other small-scale unmanned aerial vehicles — are already governed under the same laws that regulate aircraft like helicopters and airplanes.”

As of yet, there has been no precedent setting court case involving drones and the issue of one’s privacy. So, what do you do if a drone is hovering over your property or, say, hovering at an altitude so low that it’s invading usable space (where you would walk or mow your lawn)?

The short answer is, don’t whip out your Remington or Ruger. If you do, you’re going to get in trouble and/or you might just hurt someone.

Brian Farkas recommends, first, not to overreact and then take these steps.

  • Contact your neighbor. Knock on the door, send an email, pick up the phone. Kindly ask that they not fly the drone over your property. Maybe suggest a nearby park.

  • What if the neighbor doesn’t respond to your request? You may have the option of approaching a lawyer about a “private nuisance” – that the drone noise or presence is “disrupting your quiet use and enjoyment of your premises.”

  • Make the case of trespass. Again the notion of airspace ownership is tenuous, but if you could show photos you’ve made of how close a drone is to your home, for instance, this would help demonstrate to a judge that the flight is actually trespassing.

  • Drones with cameras over your property suggest the possibility of invasion of privacy. Under common tort law, if you feel your privacy is being invaded you could ask the judge to place a temporary restraining order on your neighbor, directing him not to fly the drone.

  • Limited damages. Realistically, damages would be nominal, unlike a case of breach of contract, for example. Damages would be tough to argue. And as with other matters with neighbors, the whole issue would be better worked out outside of the court system and through mediation.

As many of you may know the FAA did implement a new regulation effective December 21, 2015 that requires drone and R/C aircraft owners to register aircraft weighing over .55 lbs. Owners must also have a compliant label for identification and carry Certificate of Registration as well. Additionally, the FAA site states:

“People who previously operated their UAS must register by February 19, 2016. You will be subject to civil and criminal penalties if you meet the criteria to register a drone and do not register, including fines of up to $250,000.”

That drones are beginning to be a big problem regarding safety and privacy is evidenced in The Washington Post piece “Rogue drones a growing nuisance across the U.S.” In it Michael P. Huerta, the head of the FAA, says the increasing number of drones in the air, “I’m definitely getting much more concerned about it.”

I think we’re all for technology, but at the same time all for privacy.

For now, we’ll just have to see how things play out in some court case in the future.

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Kiffin Hope is the Digital Marketing & Social Media Community Manager for ALPS Corporation. You can connect with him at LinkedIn and Twitter.

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