Alexis C. Madrigal
Back in October, Alexis wrote a piece asking what rights do we have with regard to the air above our property. Walk onto someone's lawn and you're trespassing; fly over it in a helicopter and you're in the clear -- "the air is a public highway," the Supreme Court declared in 1946. But what about the in-between space? Does the availability of unmanned aerial vehicles (aka drones, aka UAVs) throw a wrench in the old legal understandings?
Well, here's where the rubber meets the road for this abstract line of questioning. The Capitol Hill Seattle Blog is reporting a complaint it received from a resident in the Miller Park neighborhood. She writes:
This afternoon, a stranger set an aerial drone into flight over my yard and beside my house near Miller Playfield. 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.
The site adds, "The woman tells us she called police but they decided not to show up when the man left."
But even given the Supreme Court's finding that Alexis raised, it's unclear whether this stranger's drone-flight -- not to mention his photography -- was legal under current law. John Villasenor, author of a recent Harvard Journal of Law and Public Policy article about the laws governing drones and privacy, explained to me over email that it's difficult to analyze the legalities of the case without more information. What kind of drone was it? How was it flown? These questions would be instrumental to determining whether it was operated in accordance with FAA regulations.
As for the privacy concerns, one of the most important questions is what was being photographed. "If the camera on the drone was always aimed at the public street," Villasenor writes, "then that's very different than if it was capturing images into the home through the window."
The First Amendment provides a right to gather information, but that right is not unbounded; it ends, Villasenor writes, "when it crosses into an invasion of privacy." He continued, "Putting a stepladder up against someone else's home without permission, climbing up the ladder, and then photographing into a second-floor window would be an invasion of privacy. Using a drone just outside the window to obtain those same photographs would be just as much an invasion of privacy."
New technologies may present new ways of violating people's privacy, but that doesn't mean they're legal. It will take courts years to figure out how to apply our laws to our age of drones (and years for legislators to revise them -- they're not, after all, perfect), but we're not starting from scratch. That said, police (or other law-enforcement agents) will need to actually enforce existing laws, or they're not all that helpful.