Is flying a Drone illegal?

[Lastduik]

Is Flying a Drone Illegal? A Comprehensive Guide to America’s Drone Laws

Thank God I live in Australia

 

[Lastduik]

Thank goodness I live in Australia when flying my drone.

 

[Whirlygig]

Great, well written article.

I found this on www.the333.org. It's something the FAA sends to local legislators to consider before writing drone legislation.
http://www.faa.gov/uas/regulations_policies/media/UAS_Fact_Sheet_Final.pdf

Good find. But even this one fails to address the potential significance of state trespass law. Oregon's law seems to be a real outlier. WA right next door has no such law. Over the next five years, expect increasing attention from FAA and your state legislators.

The title of the thread is, is it illegal to fly drone? I'd like to briefly broaden discussion to whether it's illegal to fly and capture video under state privacy and trespass law. My thesis is if you are filming any thing open or visible to the public, then there is likely no reasonable expectation of privacy being violated by either a governmental or private drone flyer. Here is why...

 

[Whirlygig]

Hint: It's all about Barbara Streisand.

 

[Whirlygig]

Kenneth Adelman sold a software company to Cisco for $115 million in 1996 and another company to Nokia for $335 million in 2000. He then retired and started the California Coastal Records Project. Mr. Adelman and his wife flew their helicopter up and down the 1,150 mile California coastline taking over 12,000 photographs with a high resolution camera. Their purpose was to capture the beauty of the coastline but also to document the effect of development including erosion.

 

[Whirlygig]

One of the 12,000 photos loaded onto the internet happened to show Barbara Streisand's gorgeous Malibu estate. Ms. Streisand thought it was an invasion of privacy and filed a $10 million lawsuit against Adelman and others.

 

[Whirlygig]

It was a legal and public relations disaster of epic proportion.

California Coastal Records Project

 

[Whirlygig]

Now here is 2016 reality:

Barbra Streisand's Estate -- Sightseeing with Google Satellite Maps

 

[Whirlygig]

The Fourth Amendment to the US Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It means the government must usually obtain a search warrant from a judge based on probable cause before searching a home or office, tapping telephones, etc. One big exception to the warrant requirement is that officer is free to look and see what can be seen from a lawful vantage point without trespassing on private property. Many years ago the us supreme court ruled that an officer may use flashlights and binoculars to conduct a search because such devices merely enhance human senses without trespassing or violating any "reasonable expectation of privacy." But, if you can use binoculars then why not enhanced sniffers?

 

[Whirlygig]

Or better and better binoculars?

 

[Whirlygig]

Or, as is more relevant to our discussion, thermal imaging to see who is burning bright lights in their attic? (Drones are great at this).

 

[EyeWingsuit]

Maybe someone should inform them, then, of the laws so they (government) don't continue to break them lol.

You can bet the FAA has already had a word or two with them, as they've done with many other states.

The article is a good one, but also misleading for the reasons mentioned above. It's sort of like claiming that there is no law that says you have to pay taxes, either.
Like it or not, the FSIMs address all of this closely. The FAA follows the FSIMs, regardless of how the regs are written vs the expected enforcement.

I wonder if any of these guys made the argument that the FAA can't actually compel them to obey rules...
23 Drone Operator Prosecutions by the FAA – What Every Recreational and Commercial Drone Operator Needs to Know. - Drone Law Attorney Services - Rupprecht Law, PA

 

[Whirlygig]

The US Supreme Court ruled that a federal officer's use of a thermal imaging or FLIR device to see heat emanating from a person's home consistent with an illegal grow operation was a "search" requiring a warrant under the 4th Amendment in Kyllo v United States, 533 U.S. 27 (2001).

The 5/4 decision written by Justice Scalia concluded that the FLIR technology used by the federal government was not available to the general public and therefore violated a reasonable expectation of privacy in the home. Dissenting Justice John Paul Stevens argued the use of a FLIR was not a search requiring a warrant because heat emissions do not reveal intimate details of the home and can be observed by other means.

FLIR technology (and much more) is now readily available to the general public so draw your own conclusion...

 

[Whirlygig]

I think such a law is ripe for challenge, the FAA would most likely back you on that.

The FAA acknowledges it has no right to interfere in enforcement of various state and local laws that may effect a private citizen's right to fly drones in "State & Local Regulation of UAS Fact Sheet," 12-17-15:

EXAMPLES OF STATE AND LOCAL LAWS WITHIN STATE AND LOCAL GOVERNMENT POLICE POWER Laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002). Examples include: • Requirement for police to obtain a warrant prior to using a UAS for surveillance. • Specifying that UAS may not be used for voyeurism. • Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing. • Prohibitions on attaching firearms or similar weapons to UAS.

 

[EyeWingsuit]

The FAA acknowledges it has no right to interfere in enforcement of various state and local laws that may effect a private citizen's right to fly drones in "State & Local Regulation of UAS Fact Sheet," 12-17-15:

EXAMPLES OF STATE AND LOCAL LAWS WITHIN STATE AND LOCAL GOVERNMENT POLICE POWER Laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002). Examples include: • Requirement for police to obtain a warrant prior to using a UAS for surveillance. • Specifying that UAS may not be used for voyeurism. • Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing. • Prohibitions on attaching firearms or similar weapons to UAS.

All true, but there is no need for a state law regarding weaponization of a drone, for example. It's already been illegal to weaponize (or fire a weapon) from an aerial vehicle, for many years (Federal). There is no need to pass local nor federal laws related to voyeurism, as there are already voyeurism laws in place, and it is here that the FAA is trying to help local and state legislators understand that taking actions beyond laws already in place are confusing the public and creating unenforceable or difficult to enforce laws.
It's a real mess, one that the FAA has brought upon the American public through weak leadership under Huerta, Huerta's lack of attention to something Randy Babbitt had concisely advised, and lack of followthrough from his underlings. Huerta needs to step up the conversation.

 

[RichWest]

I vote EyeWingsuit as the sUAV Czar to the FAA.....

Let me give Barry a call...

 

[EyeWingsuit]

I vote EyeWingsuit as the sUAV Czar to the FAA.....

Let me give Barry a call...

LOL, you'd wanna call Michael Huerta. I'm already on one FAA panel for a different aspect of aviation. Maybe you can convince Donald, Hillary, Navin, or Mickey to replace Huerta with me, although I vote Jubal as the better Voice. Call in your vote now, text often!.

 

[Whirlygig]

...there is no need for a state law regarding weaponization of a drone, for example. It's already been illegal to weaponize (or fire a weapon) from an aerial vehicle, for many years (Federal). There is no need to pass local nor federal laws related to voyeurism, as there are already voyeurism laws in place, and it is here that the FAA is trying to help local and state legislators understand that taking actions beyond laws already in place are confusing the public and creating unenforceable or difficult to enforce laws...

Does federal law prohibit "lethal weapons" only? Because I thought at least one state allows police drones to carry "non-lethal weapons" like tear gas. It's interesting to me that states are free to decide probable cause/warrant requirements for drone surveillance. I assume it's because state constitutions may confer greater privacy protection than the 4th Amendment. Whether you have a reasonable expectation of privacy from governmental air surveillance may depend where you live!

 

[Whirlygig]

...There is no need to pass local nor federal laws related to voyeurism, as there are already voyeurism laws in place...

I agree state law should suffice but technology changes things quick. The Washington State Supreme Court shocked the world in 2002 when it ruled that surreptitious recording of "up the skirt" videos of women at the Seattle Center did not violate the voyeurism law.

In State v Glas, 147 Wn. 2d 410 (Wash. 2002), the court described the recordings as "disgusting and reprehensible" but technically not illegal because the statute prohibited filming someone without their knowledge and consent in a place where they had a reasonable expectation of privacy. The court concluded that someone walking in public at the Seattle Center had no reasonable expectation of privacy.

The state legislature subsequently amended the WA voyeurism statute to criminalize taking unauthorized pictures of the intimate areas of someone's body regardless of where the person is located.

 

[Whirlygig]

I better stop sunbathing naked in my backyard

In commemoration of Independence Day, and in salute to the United States Constitution, I would like to continue our discussion. The question is would Datta Groover have a viable claim for invasion of privacy if one of us flew solo over his backyard and intentionally or inadvertently photographed him nude sunbathing assuming no FAA rules were broken?