Drone On: How New Drone Regulations Raise Privacy Concerns

By April Price

As of August 29, 2016, new FAA drone regulations went into effect that reduce the red tape necessary to fly drones for business. Prior to this date, would-be drone operators needed a pilot’s license as well as a waiver issued by the FAA in order to fly commercially. The latest regulations allow anyone 16 and older to operate a drone provided they have a remote pilot certificate and operate the drone in their visual line of sight.   Other parts of the regulation stipulate that drones can only be operated during daylight hours, must stay below 400 feet, and fly less than 100 mph.

For those of you with drones on your Christmas list, the new (and old) regulations apply only to commercial unmanned aircraft systems (UAS) uses.  Hobbyists and recreational UAS operators are subject to the FAA’s Special Rule for Model Aircraft which requires following a set of community safety standards as well as other requirements such as alerting airports within a five-mile range.  Community standards are set by organizations such as the Academy of Model Aeronautics and others.  The FAA also created the B4UFLY app to check for safe areas to fly recreational UAS.

Whereas before businesses had steep barriers to entry to operate drones, the new regulations allow more to enter the market. Delivery drones from remote locations are not covered in the current regulations due to the line of sight requirements, but the FAA has stated that they will propose new rules incrementally as technology progresses, so expect to see another rulemaking in the coming years as more businesses push for this allowance.

Privacy is a prominent concern when it comes to drones with cameras.  A guiding principle used for privacy considerations is whether the subject has a reasonable expectation of privacy.  For example, does someone have a reasonable expectation of privacy in their fenced-in backyard?  Probably, but most people have not objected to the Google Earth satellite photos of their property, including their fenced-in backyards.  If “we” are ok with that, where do we draw the line?  The response, in at least a few instances, has been to shoot down the offending drone. While such a course of action has its own set of consequences, it demonstrates the protective nature some have over their property and privacy.

Questions of privacy are complicated by questions of who controls the airspace. In the landmark case United States v. Causby, the courts held that use of the airspace on Causby’s property diminished his property value, requiring compensation.  While this case gave us a precedent for that specific set of facts, the technology used today is drastically different.  In that case, the military aircraft were loud and disruptive to Causby’s farm.  Today’s drones are nearly silent.  Moreover, as camera technology improves, the height of the airspace controlled by the property owner becomes less relevant. After all, if a photo can be taken at 400 feet with same clarity of detail that it can at 40 feet, does the position of the drone in airspace matter to the backyard sunbather as much as whether the photo was taken at all?

The new regulations bring about more questions than answers and leave many uneasy about the prospect of more drones in the skies. For those who might see a drone flying above their swimming pool, what rights do they have? Unfortunately, the regulations don’t say. If you don’t feel like waving and smiling for the camera when a drone flies over your yard, you can ask the operator to stop. The regulations do state that the operator must keep the drone within eyesight at all times. If you’re friendly with your neighbors, this is a reasonable option. If not, you can join others waiting to see what the next round of regulations say.

April Price Attorney At LawApril is a patent attorney who practices in our Intellectual Property group. She focuses on IP issues related to media, licensing, copyright, trademark, technology, and patents.