Information Privacy Law
Professor Ira Rubinstein
March 23, 2017
In October 2015 a local judge in Kentucky cleared the “drone slayer” of all criminal charges, namely a person who had shot down a drone from his backyard, claiming protection of his sunbathing daughter’s privacy. In the meantime, in December 2015 CNN obtained the first ever exemption from the Federal Aviation Authority to operate a drone “over people”, while the FAA has long resisted the pressure to include privacy-related rules in its recommended legal framework.
Far from being a distant future possibility, the market for recreational drones is growing rapidly, with predicted growth to a value of around $4bn over the next five to ten years. As far as the commercial use of drones is concerned, Amazon has announced that it is going to initiate Amazon Prime Air, a service offering its subscribers the opportunity of a one-hour drone delivery. Nevertheless, and despite those developments and predictions, a consistent and fully-fledged regulatory framework addressing the (privacy) implications of drones does not currently exist.
Most of the legislatures around the globe have emphasized the safety aspect of drones, with the UK having drafted the “Dronecode” for hobbyists and mandated that operators of commercial drones would have to undergo flight tests. On the other hand, there are no legal provisions regulating recreational drones in the US, with the FAA only maintaining a registrar for commercial drone users.
But what about the privacy implications of drones, especially seen through the lens of Florida v. Reiley and the notion of “a reasonable expectation of privacy” when exposed in public? The Court in that case based its decision on the legitimate use of navigable air space by the state and the “naked-eye-observation” argument to deny any liability on behalf of the state authorities that surveyed the defendant’s house. Does that mean that as long as a drone flies within an FAA-approved air space, the reasonable expectation of privacy dissipates?
Moreover, Kyllo v. United States prohibited invasive surveillance techniques, as long as the device used for the surveillance was not “in general public use”. Following that logic, even if drones will ultimately be considered to be highly intrusive, can their predicted ubiquity absolve any form of liability? Finally, these cases address instances only of governmental intrusion and the only relevant legal precedent confronting an invasion of privacy by private individuals is currently only the Bulitt County District Court Judge.
If CCTV and surveillance cameras are able to claim an overweighing benefit of preserving public security, what kind of counter-justification exists to allow drones and their subsequent intrusion to privacy for the sake of recreation? An international legal framework is needed, perhaps in sound collaboration with technical protocols that should be able to block GPS-navigation when drones are approaching the private sphere of other individuals.