The FAA predicts that by 2030, the Unites States could see more than 30,000 drones filling its skies. Drone use by the government and private individuals alike has long been permitted in the United States for some time without significant regulation. However, state governments and privacy advocates have started to express concern as drones have become increasingly prevalent. In response to fears of government overreach and private citizen abuse, Florida enacted the “Freedom from Unwanted Surveillance Act” regulating drone use by both private citizens and the government.
Public support for drone use varies. A Monmouth University poll found that 80% percent of Americans support the use of drones in search and rescue operations, 67% are in favor of using drones to track down runaway criminals, and 64% support drones in border control. However, the poll also found that less than a third of respondents supported drones in routine law enforcement activities—like giving speeding tickets—while more than 40% indicated they would be “very concerned” about privacy if police used drones with high-tech cameras.
Although still rare, law enforcement agencies are beginning to use military grade technology for surveillance. These spy drones can be equipped with cameras, microphones, or cell phone interception technology like “stingrays.” Some drones have even been programmed to track vehicles using license plate readers. Perhaps most disturbing, the surveillance drones of the near future could be equipped with facial or biometric recognition software, allowing them to identify and surreptitiously follow individuals from far in the air, possibly without a human at the controls.
Yet, drones operated by law enforcement agencies are far from the only threat to privacy from above. Drones with cameras and other technology are increasingly affordable and available to the public, with few legal restrictions on where, or how, the devices can be used.
Faced with rapidly advancing technology and unclear rules Florida’s “Freedom from Unwanted Surveillance Act” addresses two important gaps in privacy law created by drones: an individual’s expectation of privacy and civil damage penalties.
The Fourth Amendment protects against unreasonable searches and seizures. According to the Supreme Court a person must have “an actual (subjective) expectation of privacy” that society recognizes as ‘reasonable.’” While there is a presumption that a person has a reasonable expectation of privacy in their home, the protection does not extend to anything visible to the public, including privately owned yards. The Court has held that fly-overs of property with manned vehicles—like helicopters—are not searches under the Fourth Amendment because the airspace is public and therefore objects within view of the public are not protected. Drones, however, create a relatively new scenario where it is both inexpensive and efficient to obtain aerial images of private property, the implications for surveillance have yet be fully fleshed out.
The Freedom from Unwanted Surveillance Act creates a statutory presumption that any person on private property has a reasonable expectation of privacy when not visible from the ground. To obtain images of any person or objects not visible from street level with a drone would require either a warrant or the express written consent of the property owner. The bill also contains exceptions for preventing terrorist attacks and emergency situations. Non-surveillance activities such as construction, property appraisals, and utility line inspections would also be permitted.
In most states, individuals can sometimes protect themselves from drone surveillance through common law privacy tort law suits (Solove & Schwartz, Privacy Law Fundamentals). Unfortunately, it is very difficult to win a lawsuit for privacy violations. The privacy violation must be “highly offensive,” and the plaintiff must give a proof of damages. (Solove & Schwartz, Privacy Law Fundamentals). A neighbor’s drone that peered through windows or secretly recorded a conversation might be considered “highly offensive,” but damages would be difficult, if not impossible, to calculate.
The Freedom from Unwanted Surveillance Act addresses these issues as well, by creating a civil remedy for violations of the act’s provisions. An aggrieved person could bring a civil action against any private individual, organization, or government actor for surveillance of private property. The surveillance does not have to be particularly offensive, and holds violators strictly liable. In addition, the bill allows for attorneys fees, compensatory damages against the government, and punitive damages against private citizens, all of which encourage enforcement of the Act’s powerful provisions.
Florida’s innovative legislation creates protections for the State’s residents without unduly burdening law enforcement or industry. The Act represents a welcome step towards preserving privacy in an era where the law rarely keeps pace with changing technology. States around the country should consider following in Florida’s footsteps and enact legislation preserving the privacy of citizens from a sky soon to be blanketed with drones.
Alexander N. Macheras is from Andover, Massachusetts and graduated from Boston College majoring in political science with minors in economics and environmental studies. Alexander is expected to graduate from Boston University with a Juris Doctor in Spring 2016. With a diverse set of legal interests including privacy and election, and constitutional law, Alexander hopes to be involved with legislation in the future.