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Drone Law (or the Lack Thereof)

ThinkstockPhotos-452549881This following is a guest blog post by George M. Moore, PhD, JD, a Scientist-in-Residence at the Middlebury Institute of International Studies at Monterey, California, where his course in Drones and Surveillance considers both the technical and legal aspects of drone use and its impact on privacy issues. Dr. Moore is a member of the California and Colorado state bars.

The crashing of a drone on the White House grounds among other recent incidents have shown that drones may pose direct threats to our security, but perhaps a greater long-term threat of drones is to our privacy. A collision between safety, security, privacy rights, and commercial utility is about to happen, and the legal community needs to be prepared to recognize and address the issues that will surely arise.

Like many new technologies, the rapidly changing capabilities of drones have far outstripped the efforts of legislators, regulators, and the judicial system. As implied by the title of this post, there is no field of drone law. The legal system is struggling to see how existing laws in various fields and prior court decisions can be applied to situations involving drones to ensure that Fourth Amendment protections and privacy rights are not eroded by the new technologies.

To some extent, state legislative bodies have been reluctant to provide regulatory guidelines, awaiting federal regulations from the FAA and Congress. But over 20 states have enacted some measure of control over small drones. The California legislature passed AB 1327 in 2014—a measure seeking to control drone use by all state agencies and to establish a one-year time limit for agencies to hold video footage collected by drones—but it was vetoed by Governor Brown.

The FAA has proposed new rules that will legalize commercial uses of small (less than 55 pounds) drones and open US skies to what some estimate as tens of thousands of daily operations.

But there are many questions as to how the First and Fourth Amendments will limit the use of drones for search and surveillance, such as:

  • Can a drone be used in warrantless surveillance to hover over a suspect’s yard to obtain information that could be used to obtain a valid search warrant, and would this be an authorized warrantless search?
  • What type of surveillance equipment other than video could a drone use in a warrantless search?
  • What First Amendment rights are associated with the use of drones?

A number of these issues are fairly similar to those that arose with surveillance from aircraft and rotorcraft/helicopters, which courts have held don’t require a warrant for observations made from them when flying within navigable airspace. See e.g., California v Ciraolo (1989) 476 US 207.

If the new FAA regulations allow drones to operate (as apparently they will) at low altitudes with few restrictions, will this be the “navigable airspace” for drones and therefore federally define where drones may operate in a manner that will preempt state and local regulation? Can a drone be a “Peeping Tom” if it’s operating in navigable airspace? How do laws such as nuisance and trespass play into the equation?

Although federal legislation to deal with these issues would likely be preferable to a series of judicial determinations, some argue that states are a better experimental platform to establish such laws and that Congress should be very wary of “one-size-fits-all” omnibus legislation.

But until laws are passed or cases come down, attorneys will need to familiarize themselves with the basics of the legal issues involving drones, including possible civil liabilities of their clients’ use of drones and the potential effect of warrantless search and surveillance by drones on their criminal clients’ rights.

On privacy law generally, turn to CEB’s Privacy Compliance and Litigation in California.

Other CEBblog™ posts on privacy issues:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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