Is flying a Drone illegal?

[Maddog]

Ohh- ick!
TV news helicopters fly over homes all the time, frequently filming people in their back yards. (Ever watch news coverage from a chopper while police search a back yard for evidence,etc?)

What's the difference (legally) between the news chopper and a drone filming from the air?

What it the news started using drones to film things they previously did with choppers? Will their drones be more heavily regulated than their choppers?

 

[EyeWingsuit]

No.
This has already been ruled upon by SCOTUS. If your intent was not focused on him sunbathing in the nude, he only has a "reasonable expectation of privacy." If, for example, a neighbor with a porch higher than the fence noticed him, that's entirely on him for being naked in the backyard where someone else could see. If the drone were to stop mid-flight and focus upon him, that would be a different consideration and an entirely different topic.

If you where walking along the boardwalk at a nude beach taking random photos, that's your right, and their risk. But if you stop and focus on a specific person, it becomes their right and your risk of prosecution.

 

[Whirlygig]

Ohh- ick!
TV news helicopters fly over homes all the time, frequently filming people in their back yards. (Ever watch news coverage from a chopper while police search a back yard for evidence,etc?)

What's the difference (legally) between the news chopper and a drone filming from the air?

What it the news started using drones to film things they previously did with choppers? Will their drones be more heavily regulated than their choppers?

One difference is the news chopper is operating in plain view. Much louder and obvious. And ownership of the chopper may be determined from the ground. Also, First Amendment right to free speech broadly protects "news gathering" by chopper or otherwise.

 

[Whirlygig]

Here is an example. Amy Jacobson was a television new reporter working in a major metro market. You see the image. Polished and professional. A competing news program sent a photographer who obtained a neighbor's permission to secretly photograph her in a bikini. They had a field day posting their haul!

Ms.Jacobson sued the photographer and his employer for invasion of privacy in state court. The court dismissed case with prejudice.

The photographer had the neighbor's permission to take the shots. Ms. Jacobson could not possibly have known she was being photographed. But, she was standing and walking in places technically open to public view. How Ms.Jacobson looks in a bikini is not really newsworthy or anyone's business. But her wearing a bikini in that particular back yard was newsworthy. Why? Because Ms. Jacobson was standing inside the home and backyard of a man married to Lisa Stebick who had gone missing and was the subject of a major criminal investigation.

And Ms.Jacobson was herself investigating and reporting the Stebic story on the nightly news and getting killer ratings. She injected herself into the story and made herself part of it. Ms. Jacobson said the prime suspect invited her to bring kids over for a swim that one time and she thought why not? She was promptly fired by the news station but never charged with or convicted of any crime.

 

[Whirlygig]

After I took this photo I realized I had inadvertently caught a couple holding hands engaged in a romantic interlude of sorts. I wondered whether I had violated their privacy? But then I realized I used the camera phone and it was very much open to public. Got to be respectful of people and property always but cannot get to paranoid with this stuff!

 

[EyeWingsuit]

Here is an example. Amy Jacobson was a television new reporter working in a major metro market. You see the image. Polished and professional. A competing news program sent a photographer who obtained a neighbor's permission to secretly photograph her in a bikini. They had a field day posting their haul!

Ms.Jacobson sued the photographer and his employer for invasion of privacy in state court. The court dismissed case with prejudice.

The photographer had the neighbor's permission to take the shots. Ms. Jacobson could not possibly have known she was being photographed. But, she was standing and walking in places technically open to public view. How Ms.Jacobson looks in a bikini is not really newsworthy or anyone's business. But her wearing a bikini in that particular back yard was newsworthy. Why? Because Ms. Jacobson was standing inside the home and backyard of a man married to Lisa Stebick who had gone missing and was the subject of a major criminal investigation.

And Ms.Jacobson was herself investigating and reporting the Stebic story on the nightly news and getting killer ratings. She injected herself into the story and made herself part of it. Ms. Jacobson said the prime suspect invited her to bring kids over for a swim that one time and she thought why not? She was promptly fired by the news station but never charged with or convicted of any crime.

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The differences you cite are far and away from someone flying over a home and inadvertently capturing images.
Ms Jacobsen is a celebrity and therefore only entitled to a small amount of privacy. Celebrities are what they are in great part, because they seek the limelight. Where she was and how she was dressed are entirely secondary to anything. She is permitted no deep expectation of privacy when away from her own home. Paparazzi are not only for the Hollywood crowd. court case after court case has demonstrated this.

Regarding a chopper vs a drone, the conversation from a legal perspective, is entirely the same. If choppers could be made to be entirely silent...who knows where the laws might eventually head.

Check out a very old controversy surrounding a television series called "Airwolf" where the chopper effectively *could* go silent (only in Hollywood). Many people thought Airwolf was real. And the laws were trotted out, explaining exactly what rights people had back then. And they're the same now.

 

[Whirlygig]

...Regarding a chopper vs a drone, the conversation from a legal perspective, is entirely the same...

I agree as far as who owns and operates the drone and for what purpose is crticial. Disagree that the size and sound of the UAS vs. a chopper are irrelevant under state nuisance, trespass, and invasion of privacy laws.

 

[EyeWingsuit]

I agree as far as who owns and operates the drone and for what purpose is crticial. Disagree that the size and sound of the UAS vs. a chopper are irrelevant under state nuisance, trespass, and invasion of privacy laws.

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@Whirlygig, I'm *entirely* open to being educated. I do have a very solid understanding of Utah, Californa, Nevada, Arizona, Washington, Oregon laws on the topic. If there is a state or municipality that has a law setting apart the vehicle or mechanism used for trespass, harassment, voyeurism, I'm all ears.

It's only recently that Washington (for example) shifted their laws, and it has nothing to do with drones, but rather intent. One guy, who was drone chasing who he felt were prostitutes, found himself on the wrong side of a harassment charge. Didn't matter it was a drone, he was using a mechanism to harass. Same *is* is happening in Washington state right now, a guy photographing who he felt are drug dealers on their boat. Their boat is their home. The drone isn't part of the discussion; it's that he was harassing, invading their privacy in a place where they expect a reasonable amount of privacy (their home). Trespassing isn't part of the charge, because the state/municipality understand they don't own the air.

I have no doubt there is some back-water municipality (like the Western District of Kentucky) that has ordinances at odds with the FAA and/or their own state laws, but in general, drones are classified as civil aircraft. Additionally, primary case law is found in this (but one of many similar) cases. Notice no warrant was called for?

 

[Whirlygig]

The differences you cite are far and away from someone flying over a home and inadvertently capturing images.

Yes, to show why it would be difficult to invade someone's privacy by inadvertently capturing an image of a place open to public view on a smartphone or hobby drone (so long as you are not trespassing). Same point I was making by citing the Streisand case. I think we agree on this.

 

[Renan Skiya]

thanks posted, a huge information, careful study.

 

[Whirlygig]

@Whirlygig, I'm *entirely* open to being educated. I do have a very solid understanding of Utah, Californa, Nevada, Arizona, Washington, Oregon laws on the topic. If there is a state or municipality that has a law setting apart the vehicle or mechanism used for trespass, harassment, voyeurism, I'm all ears.

It's only recently that Washington (for example) shifted their laws, and it has nothing to do with drones, but rather intent. One guy, who was drone chasing who he felt were prostitutes, found himself on the wrong side of a harassment charge. Didn't matter it was a drone, he was using a mechanism to harass. Same *is* is happening in Washington state right now, a guy photographing who he felt are drug dealers on their boat. Their boat is their home. The drone isn't part of the discussion; it's that he was harassing, invading their privacy in a place where they expect a reasonable amount of privacy (their home). Trespassing isn't part of the charge, because the state/municipality understand they don't own the air.

I have no doubt there is some back-water municipality (like the Western District of Kentucky) that has ordinances at odds with the FAA and/or their own state laws, but in general, drones are classified as civil aircraft. Additionally, primary case law is found in this (but one of many similar) cases. Notice no warrant was called for?

EW, just here to learn also (which is why I said next time you go flying in Seattle tunnel or some other cool place, Id like to go!) I love my solo but only into hobby for one year now so still a novice. But, let me throw a few things out:

There was no warrant sought or issued in the Amy Jacobson case because the photographer was not a state or federal employee conducting surveillance in a criminal or other investigation. The 4th Amendment protection against unreasonable searches and seizures only applies to governmental, not private actors. This is why someone who says you are invading their constitutional right to privacy by flying a drone are incorrect if you are not a governmental agent or employee acting under color of law.

 

[Whirlygig]

It all started when six cows wandered onto Rodney Brossart’s cattle ranch in Lakota, North Dakota in 2011. Mr. Brossart refused to return the cows to their owner until he was paid for the grass they ate during their visit. This led to a confrontation and the Nelson County Sheriff Department was called in to arrest Mr. Brossart.

Mr. Brossart and his three sons drew weapons and warned the sheriff's deputies not to trespass or they would be shot. It was a large ranch with several buildings. The sheriffs’ deputies were unsure how many people were on the property and where they might be hiding so they temporarily retreated.

Sheriff Kelly Janke called in some serious backup. A SWAT team and a US Customs & Border Patrol Predator drone based in nearby Grand Forks, North Dakota. The Predator has sensors enabling it to see whether someone is armed with a weapon in day or night.

After several hours of intense standoff, the drone signaled when the Brossart family set down their weapons while hiding inside one building. SWAT swarmed inside with lightning speed and arrested all suspects with no shooting and no injury.

Mr. Brossart was later convicted of assault but acquitted of cow stealing. It was 2011, the first time a drone participated directly in the arrest and conviction of US citizen on US soil. The judge said two things of interest:

1) In this scenario, the sheriff did not need a warrant to surveil the suspects by Predator;

2) Generally speaking, we ought not let disputes over a few wandering cows who ate some grass escalate into armed confrontations with neighbors and law enforcement.

What I find interesting is that the people in North Dakota have no problem with law enforcement using Predators to surveil and solve local crimes while the people in Seattle, Washington said no way to Seattle police using just two little Draganflyers...

 

[Whirlygig]

thanks posted, a huge information, careful study.

Maybe we keep going then...

Predator vs. Draganflyer--is one more intrusive than the other? Can state and local populace restrain governmental use?

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[PdxSteve]

We just need an ARGUS flying over every city recording everything all the time. Then they can just backtrack to see what everybody was doing and where they were at any point in the past since they started recording. It's coming. We're just rats in a technological cage. Good luck hiding from the eye in the sky.

 

[Whirlygig]

We just need an ARGUS flying over every city recording everything all the time. Then they can just backtrack to see what everybody was doing and where they were at any point in the past since they started recording. It's coming. We're just rats in a technological cage. Good luck hiding from the eye in the sky.

You may be right. Here is the irony. The historical roots of the modern day claim for invasion of privacy are often traced to an 1890 Harvard Law Review article entitled "The Right To Privacy," by Louis Brandeis and Samuel Warren. One famous excerpt:

“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."

The right to privacy is constantly evolving although its still hard to imagine feeling threatened by 1890s technology!

 

[Whirlygig]

...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...

But, I prefer that state and local legislatures, not the federal government, define what constitutes nuisance, trespass, and invasion of privacy in or over my backyard. One reason why:

The Washington State Constitution has a special section devoted to privacy and it provides greater protection than the Fourth Amendment in the federal constitution.

"While the Fourth Amendment operates on a downward ratcheting mechanism of diminishing expectations of privacy, Article 1, Section 7 holds the line by pegging the constitutional standard to those privacy interests which citizens of this state have held, and should be entitled to hold, safe from government trespass absent a warrant." Robinson v. City of Seattle, 102 Wn. App. 795 (2000).

 

[Whirlygig]

Another reason is track record.

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[Whirlygig]

 

[DattaGroover]

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?

Sorry for the delay - I've been out of here for a while. Right now in the US,, I do not own the sky above my property, but that is very controversial, and may be changed. In many countries, that is already the case, and several states in the US are attempting regulations about that. CA tried, but I think the Governor killed it. Or the CA Senate.
In Australia it's illegal to fly over someone's backyard without permission, but you CAN fly over their front yard.

 

[DattaGroover]

Another reason is track record.

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"Not wittingly!"