Invasion Of Privacy From a Drone? Attorney Frederick Penney’s Perspective

The following is a statement from Frederick W. Penney: I recently had an individual call and ask me as a personal injury lawyer https://www.penneylawyers.com/frederick-w-penney/ what they could do if someone was flying a drone and hovering over their backyard. This was a drone that was advanced and equipment with cameras for filming. Quite Frankly, if this individual were in the city or a large subdivision I would have not been so concerned as it would be more difficult to prove that the drone was specifically targeting them due to the vast number of homes in immediate proximity of each other. However, this was not in a city or housing development but in a rural area where someone was parked quite some distance on the main road flying their private drone around the rural area. This was clearly disconcerting, and I even thought it was a clear invasion of privacy as this home was specifically targeted sitting in a rural area with no other homes immediately next door. The target for filming someone’s backyard was clear in this instance.

In my opinion, the current laws in California and in many states for that matter seem to be a little bit behind concerning one’s invasion of privacy. Most of these cases simply fall under the invasion of privacy rules in each state. For my purposes I will discuss only California law as it currently applies. One must first generally understand the Federal (FAA) drone laws in place prior to looking at local and state laws. 

For recreational flights one must be operating a drone not for a business or for financial compensation. The definition of a recreational flight only is quite extensive and very important to review the federal laws before thinking that you are using your drone for only recreational use. For example even goodwill or non-monetary value received for flying a drone may be considered a non-recreational flight under the FAA rules.  https://www.faa.gov/uas/recreational_fliers/. Recreational flyers of drones must follow several rules including but not limited to the following as found in USC 44809. https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title49-section44809&num=0&edition=prelim . 

First, register your drone and make sure you follow the FAA safety guidelines or those found in aeromodelling organizations. https://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentID/1036029 . 

Second, keep your drone within visual sight. 

Third, do not interfere with manned aircraft and fly below 400 feet making sure it is uncontrolled airspace. For controlled airspace you will need permission. 

Fourth, take the “TRUST” test which will soon require one to carry proof of taking the test. https://www.faa.gov/uas/recreational_fliers/knowledge_test_updates/. Carry a registration for the Drone and most important do not operate the drone in a dangerous manner.

Fifth, you cannot fly a drone in a National Park without a special permit. https://www.nps.gov/articles/unmanned-aircraft-in-the-national-parks.htm.

The aforementioned are very basic federal rules and regulations when operating a drone for recreational purposes. It is imperative that you look at your state and local city or county rules and regulations. Yes, some cities and states have separate rules from the FAA when it comes to operating a drone. Some can be complicated and difficult to understand.

First, California SB 1355 (2018) states that one cannot operate a drone over the grounds of any state correctional facility. This includes a state prison, jail, juvenile hall, camp or ranch. This would be considered an infraction that carries a fine of $500. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1355

Second, California AB 1680 (2015 – 2016) states that one cannot in anyway interfere with first responders during an emergency. If so, the drone pilot may be guilty of a misdemeanor. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB1680. One must be very careful as what is defined as an “emergency” is very broad. In sum, stay away from any first responders with your drone.

Third, California SB 807 (2015-2016) states that emergency personnel can destroy a drone that they feel is causing issues or problems while they are responding to an emergency. There is no reimbursement for damage to the drone when a first responder either attempts to knock it or shoot it down. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160SB807

Fourth, California AB 856 (2015) expands individuals right to privacy noting that if an individual is using a drone over someone’s home and has the intent to knowingly capture video, pictures or sound from the person or persons at the home then that may be considered an invasion of privacy. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB856.

Fifth, California AB 3173 (2017-2018) makes it an infraction if one does not register their drone with the FAA according to their rules and regulations.  https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB3173.

Finally, one can fly their drone within a California State Park unless the Superintendent of a specific park prohibits it. One must review each state park’s rules and regulations concerning drones, as the rules and regulations vary from park to park. https://www.parks.ca.gov/?page_id=29229.

Once someone has figured out all the Federal and State laws, it is important to then review the local county and city drone rules and regulations. Yes, it is almost like you must be an experienced lawyer or law maker to know the drone laws. One example is the City of Malibu, California. This is an area where many celebrities and the rich and famous live. It seems that their privacy is of utmost importance, so the city has passed an ordinance that a filming permit must be obtained prior to any commercial drone flights. https://malibucity.org/DocumentCenter/View/407/Film-Application-and-Permit?bidId= . Since most of Malibu is National Park airspace the use of drones is extremely limited. 

Now that one has the Federal, State, and local laws figured out, what can someone do if an individual or individuals are flying a private drone over their home or in their front or back yard filming their family? The answer is to call the police. These individuals are likely breaking the law by invading your privacy. But can you disable or shoot down the drone? I have not found any laws that allow someone to shoot down a drone that is invading someone’s privacy. There are federal laws about shooting down airborne aircraft and shooting at a drone may very well fall under these laws. I truly believe that the laws have not caught up with the times when it comes to drones. With more and more people purchasing drones https://www.phillybyair.com/blog/drone-stats/  and the technology becoming more and more superior I think the legislature in a state will be the first one to take the lead on determining what a private homeowner can do to a drone when it flies over their home and video’s their friends or family in or around their home. The extreme scenario would be a drone hovering near a window and taking videos inside of someone’s home. I believe it is time for the legislature to enact a law that protects people’s privacy when it comes to drones. Given how busy police departments are at this time, responding to a drone filming someone’s backyard or family without permission is low on their priority list. Thus, this gives rise to the question about what remedies a homeowner may have to take the matter into their own hands? As of now, I have found nothing other than calling the police as the only remedy. One may sue the person flying the drone for invasion of privacy if you can find out who the owner is.

This is a topic that will continue to evolve over time and the laws concerning drones is far from over and as technology gets better and better each year the laws for drones will need to be modified and changed. 

SOURCE Penney and Associates