By Derek Jorgensen
In Hillview, Kentucky, a camera-mounted drone was hovering over a neighborhood where it meandered onto one man’s property. The property owner then made use of his buckshot and shot the drone down with his shotgun. His actions produced an upset drone owner and charges against him for criminal mischief.
As technology advances, what constitutes a person’s reasonable expectation of privacy becomes unclear. On May 14, 2015, Florida established its own laws regarding drone surveillance when Governor Rick Scott signed into law the “Freedom from Unwarranted Surveillance Act.” The overarching purpose of the act is to prevent drones from entering private property. It prohibits a person, a state agency, or a political subdivision from using a drone equipped with an imaging device to record an image of privately owned real property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. The act then defines reasonable expectation of privacy as the presumption of privacy on your private property where you are not observable at ground level from a place someone has a legal right to be. This is where it gets interesting. The U.S. Supreme Court has held that we have no expectation of privacy if we can be seen on our property from the air. For instance, in Florida v. Riley, 488 U.S. 445 (1989), police received an anonymous tip that marijuana was being grown on a defendant’s property. Unable to identify any marijuana looking through the fences of the property, police employed the use of a helicopter and spotted the plants in a greenhouse. Id. The Supreme Court held this was not a search that would require the police to obtain a warrant. Since this ruling, the Supreme Court has yet to determine if this holding applies to unmanned aircrafts. What Florida is now saying is that no law enforcement agency may use drones to gather evidence without first obtaining a warrant.
The statute also lays out the remedies for noncompliance. It even avails law enforcement agencies to civil actions where the aggrieved party may obtain “all appropriate relief” to prevent or remedy a violation. Against private citizens, a plaintiff may initiate a civil action and will be eligible to be awarded: compensatory damages, injunctive relief, attorney fees from the nonprevailing party, or even punitive damages. What all of this means is that both drone operators and aggrieved property owners might find it easier to hire attorneys to litigate violations of this statute.
The Freedom from Unwarranted Surveillance Act is very broad and will be open to many different interpretations. It contains enough law that this one article could not possibly unpack all its contents. There are also a list of exceptions-- most notably using drones to counter a high risk of terrorist attack-- that are at least worth mentioning. The act will also likely create challenges for news sources, where much of their footage is gathered by drones. It will be interesting to see how the Freedom from Unwarranted Surveillance Act will be interpreted or amended in the near future when it begins to be litigated.