Kenneth Anderson, one of the legal eagles at The Volokh Conspiracy, has taken up some of the legal questions in my private drone war post:
Drones, Privacy, and Air Rights
….Private parties over private property, engaged in aerial surveillance. Is it lawful and in what ways? And, lawful or not, what countermeasures are permitted to the property owner, if any? And what general bodies of law and regulation are implicated here – property law, trespass, nuisance, etc. Comments are open, but I’m particularly interested in informed comments that run to the possible questions of law here. More general comments are better directed to Zenpundit’s site.
Note in advance that the pigeon shoot story is different from the precise question I am asking here. According to the animal rights group, the drone was over public property (although this was simply one side of the story). There is a further interesting question of whether it would ever be lawful to shoot down a surveillance drone over public property, on some theory of nuisance or trespass or the like affecting private property. But please leave that possibility in order to deal with the more obvious and conceptually prior question – what about a surveillance drone in air space over private property?
Comments there are interesting and useful.
Dr. Venkatesh Rao also drew my attention to this drone article in the New York Times:
Drones Set Sights on U.S. Skies
….A new federal law, signed by the president on Tuesday, compels the Federal Aviation Administration to allow drones to be used for all sorts of commercial endeavors – from selling real estate and dusting crops, to monitoring oil spills and wildlife, even shooting Hollywood films. Local police and emergency services will also be freer to send up their own drones.
But while businesses, and drone manufacturers especially, are celebrating the opening of the skies to these unmanned aerial vehicles, the law raises new worries about how much detail the drones will capture about lives down below – and what will be done with that information. Safety concerns like midair collisions and property damage on the ground are also an issue.
American courts have generally permitted surveillance of private property from public airspace. But scholars of privacy law expect that the likely proliferation of drones will force Americans to re-examine how much surveillance they are comfortable with.
“As privacy law stands today, you don’t have a reasonable expectation of privacy while out in public, nor almost anywhere visible from a public vantage,” said Ryan Calo, director of privacy and robotics at the Center for Internet and Society at Stanford University. “I don’t think this doctrine makes sense, and I think the widespread availability of drones will drive home why to lawmakers, courts and the public.”
Some questions likely to come up: Can a drone flying over a house pick up heat from a lamp used to grow marijuana inside, or take pictures from outside someone’s third-floor fire escape? Can images taken from a drone be sold to a third party, and how long can they be kept?
Drone proponents say the privacy concerns are overblown. Randy McDaniel, chief deputy of the Montgomery County Sheriff’s Department in Conroe, Tex., near Houston, whose agency bought a drone to use for various law enforcement operations, dismissed worries about surveillance, saying everyone everywhere can be photographed with cellphone cameras anyway. “We don’t spy on people,” he said. “We worry about criminal elements.”
Still, the American Civil Liberties Union and other advocacy groups are calling for new protections against what the A.C.L.U. has said could be “routine aerial surveillance of American life.”
Under the new law, within 90 days, the F.A.A. must allow police and first responders to fly drones under 4.4 pounds, as long as they keep them under an altitude of 400 feet and meet other requirements. The agency must also allow for “the safe integration” of all kinds of drones into American airspace, including those for commercial uses, by Sept. 30, 2015. And it must come up with a plan for certifying operators and handling airspace safety issues, among other rules.
The new law, part of a broader financing bill for the F.A.A., came after intense lobbying by drone makers and potential customers….