Drones as the New Peeping Toms?

Posted in: Injury Law

Have you noticed drones in your neighborhood? One Seattle woman recently found a drone hovering outside of her apartment.

Seattle police are investigating that woman’s report of a drone peeping into her apartment window. Police were called to the downtown Seattle apartment complex on a Sunday in June after she spied an unmanned aerial vehicle (referred to colloquially as a “drone”) hovering outside her building. The woman said she was concerned the drone was looking into her apartment while she was not fully dressed. She did take a photo of the drone as it lurked around her bedroom.

After calling police, an employee in her building went outside and saw two men piloting the drone. They then packed up their gear, which included a video camera, and drove away before police arrived. As it turned out, it was a false alarm. Joe Vaughn, the business owner of Portland-based Skyris imaging, has apologized to the resident and explained that it wasn’t peeping into her home. Vaughn said he called the Seattle Police Department when he saw the media kerfuffle about his drone. He notes that the drone was used to shoot a video for a developer who is building a 20-story office tower and needed a “view” study.

But the incident raises the question: can other people use drones to spy on us, potentially for nefarious reasons?

Drones and what role they should play in society (if any) have been a hot topic in Seattle and around the country for some time. Last year, former Seattle Mayor Mike McGinn ordered the Seattle Police Department to cease the use of surveillance drones to monitor protests and other public events after privacy groups expressed outrage. Public debate has centered around on the government’s use of drones for surveillance and whether this violates a Fourth Amendment right to be free from government spying.

Policymakers and the public, until recently, have paid less attention to the use of privately owned drones. As the Seattle incident illustrates, hobbyists can now buy a drone and use it to engage in privacy-intrusive behavior such as voyeurism. This type of behavior can border on harassment, trespassing, and privacy invasion. In this column, I will examine the private use of drones and the privacy concerns arising from this type of use, and I will discuss some of the possible policy prescriptions that might address this emerging issue.

A New Form of High-Tech Voyeurism or a Legal Activity?

The response of the Seattle police to the most recent incident is that the activity is legal. “There really aren’t any specific laws to the UAVs [unmanned aerial vehicles] other than not being dangerous,” Seattle police spokesman Drew Fowler commented. “This is a new issue and I’m sure our lawmakers will provide guidance soon.”

This is not the first instance of potential voyeurism, In May of 2014, a different individual in Seattle reported that a drone appeared to be spying on her family in their home. She reported on this in a local blog:

I initially mistook its noisy buzzing for a weed-whacker on this warm spring day. After several minutes, I looked out my third-story window to see a drone hovering a few feet away. My husband went to talk to the man on the sidewalk outside our home who was operating the drone with a remote control, to ask him to not fly his drone near our home. The man insisted that it is legal for him to fly an aerial drone over our yard and adjacent to our windows. He noted that the drone has a camera, which transmits images he viewed through a set of glasses. He purported to be doing “research”. We are extremely concerned, as he could very easily be a criminal who plans to break into our house or a peeping tom.

Interestingly, such a drone hobbyist or voyeur may not have broken any laws, as it is legal to take photographs and videos from public spaces, particularly aerial ones.

There are as of yet unanswered questions regarding the rules of the road and the limits for the personal use of drones. Consumers can get their hands on a drone today for under $1,000. Operators of these systems sometimes equip them with radios to transmit a live video feed to goggles or monitors, allowing a person to fly a drone beyond his or her field of sight. Under existing FAA rules, amateur hobbyists can use drones like radio-controlled planes. But radio controlled planes typically don’t use live video feeds and capture images as they fly around.

Some legal scholars note that while physically walking onto someone’s land is trespassing, observing private property via air is not. So, if you fly over and around someone’s yard with a drone, you may be fine. The Supreme Court ruled in 1946 that “the air is a public highway.”

In that case, U.S. v. Causby, the Supreme Court examinedwhether military aircraft flying 63 feet above a chicken farm on an approach to an airport presented an unconstitutional taking of land. The Court held that it was, meaning damages were available to the plaintiff over whose land the aircraft flew. But no precise description of the type of taking was provided. With drones flying over private homes delivering packages to consumers, the issue of what constitutes a trespass or taking will rear its head again. And even if drones have a right to hover or move across our lawns, what about a drone hovering outside of our windows? That seems quite clearly to be a privacy invasion.

Does the absence of clear legislation or judicial guidance give someone license to use a drone as a proxy to act as a Peeping Tom? Surely using a drone rather than climbing up a ladder to peer into someone’s window would still constitute a common-law invasion of privacy or some other form of harassment or stalking. To the extent a drone is actually lurking outside of your window, this would also constitute trespass under existing legal frameworks. So there should be civil and criminal law remedies available.

Until courts hear cases, or police use laws on the books, however, we may see increasing instances of drones being used to spy on people. The potential for other types of privacy invasions will inevitably develop, as well. For instance, France has asked the world soccer organization FIFA to investigate their suspicions that a drone was used to spy on the French national team’s preparations for its World Cup opening match against Honduras. The incident is said to have occurred at the French training base north of Sao Paulo.

Possible Privacy Prescriptions

Existing laws on the books do prohibit Peeping Toms. But, it has been pointed out that private drones will force new review of laws protecting all basic privacy rights.

At least one lawmaker has started to address this issue. Sen. Edward Markey (D-MA) is attempting to push through legislation—the Drone Aircraft Privacy and Transparency Act—that would prevent drone operators from violating the privacy of others. Markey proposed an amendment that would require that basic privacy rules be followed when operating a drone.

“Before countless commercial drones begin to fly overhead, we must ground their operation in strong rules to protect privacy and promote transparency,” Markey said in a statement. “My drone privacy legislation requires transparency on the domestic use of drones and adds privacy protections that ensure this technology cannot and will not be used to spy on Americans.”

The FAA’s examination of potential drone use has faced criticism from civil liberties groups who argue that they would violate the privacy rights of American citizens. The agency is required by Congress to render a verdict on the possibility of expanding drone use by 2015.

But even Markey’s bill and the FAA have focused more on the private commercial use of drones—like Amazon possibly delivering our groceries and books via drone and the privacy implications of such flights. We don’t want, for example, such drones to become potential data sources for law enforcement—the way our phone records have. Markey’s bill does not focus on the impact of these unmanned objects to possibly intrude on our personal space in creepy ways. Lawmakers need to examine this possibility as well—before we have someone harmed by virtue of a stalker who harasses his victim via drone surveillance.