Florida’s New Drone Law: Fulltime Employment for Lawyers?

Nothing can kill the growth of the commercial drone industry so much as bad laws and misguided regulations. And much as we discuss the issues surrounding federal regulation of drones, the industry faces equally difficult challenges at the state level, where an odd coalition of reactionaries from both the left and far-right have clamored for strict regulations on the use of drones, if not outright bans. State legislators are feeling the heat.

The Lawyers are lapping at my doorstep!Enter Florida’s new drone law.

Last week, Governor Scott signed Senate Bill 766 – called the Freedom from Unwarranted Surveillance Act (“FUSA”) – into law.  This new law adds language to Florida’s existing drone law, found at Section 934.50, Florida Statutes, providing for additional protections against drone surveillance, as well as providing a private right of action for violations.

Some have warned that the law will lead to a wave of litigation. For reasons that I will explain in a moment, I am not so sure. In any event, the law is definitely an example of poor draftsmanship, and it unfairly targets drone technology in a way that seems hypocritical. But its scope does not appear to be as broad as others have suggested.

First, some background:

In Florida v. Riley, the U.S. Supreme Court held that a police officer did not conduct a “search”, for purposes of the Fourth Amendment, when he observed a marijuana grow house from a helicopter that crossed the defendant’s property at 400 feet AGL (does that number seem familiar?). Relying on its prior opinion in California v. Ciraolo, in which police inspected the backyard of a house from a fixed-wing aircraft that was flying at 1,000 feet, the Court reasoned that “the home and its curtilage are not necessarily protected from inspection that involves no physical invasion.”

One might not like it, but for nearly three decades Riley and Ciraolo have been the standard for what constitutes a reasonable expectation of privacy on property as viewed from the air.

Thus, perhaps the most striking aspect of Florida’s FUSA is that it creates a “drone exception” to Riley and Ciraolo:

A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such persons reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

In other words, you have no reasonable expectation of privacy if you’re observed from a manned aircraft, but you do have such an expectation of privacy when observed from a drone. Go figure.

The statute contains a number of exceptions, such as when law enforcement has obtained a search warrant or when exigent circumstances exist. It also enumerates exceptions for commercial operations, such as land surveys, power grid inspections and, oddly enough, cargo delivery.

But the first commercial exception paragraph is likely to cause some problems.  It starts out well enough, excepting images captured:

By a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s or entity’s license.

That would seem to cover realtors, doctors, and lawyers, right?  I’m just kidding. Lawyers and doctors don’t really need to spy on people.

Well, actually, lawyers do hire “agents” and “contractors” to spy on people. They’re called private investigators. And herein lies a problem:

However, this exception does not apply to a profession in which the licensee’s authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.

In other words, if you’re a licensed private investigator, No exception for you! Which, by extension, means that lawyers also don’t get an exception. Unless they’re lawyers for the state, in which case they can get a search warrant. See how that works?

Speaking as a litigation professional, this is rather silly. Private Investigators are often called to check on whether someone is actually residing at a particular residence, or is hiding out to avoid service of process. Perhaps the legislature couldn’t figure out how to carve a narrow enough exception, or perhaps too many legislatures have been burned by divorce lawyers?

But the part that’s causing a lot of heartburn is the civil remedies provision:

The owner, tenant, occupant, invitee, or licensee of privately owned real property may initiate a civil action for compensatory damages for violations of this section and may seek injunctive relief to prevent future violations of this section against a person, state agency, or political subdivision that violates paragraph (3)(b). In such action, the prevailing party is entitled to recover reasonable attorney fees from the nonprevailing party based on the actual and reasonable time expended by his or her attorney billed at an appropriate hourly rate and, in cases in which the payment of such a fee is contingent on the outcome, without a multiplier, unless the action is tried to verdict, in which case a multiplier of up to twice the actual value of the time expended may be awarded in the discretion of the trial court.

This sounds scary, and it is. Attorney’s fees typically add up to an amount that is many times an actual damages award for these kind statutory remedies.  Some have suggested that the mere threat of a civil lawsuit poses a major hindrance to the development of commercial drones.  But does it really?

Let’s go back and look at what the statute prohibits: It says that a person

may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image. . . .

So, a plaintiff would have to prove that the defendant had a specific intent to conduct surveillance on the person or property captured in the image. In other words, you’re not liable for capturing images by mistake, or even incidentally. You have to have a specific intent to conduct surveillance.

That is likely to be a very tough standard for a plaintiff to meet. Discerning plaintiff lawyers (and there are many, believe it or not) might decide it’s not worth the trouble.

But keep in mind that (a) there are a lot of hungry lawyers on the street; (b) questions regarding intent are put to juries; and (c) juries have a way of being unpredictable. So, you might have a lot to think about.

If you have concerns about compliance with Florida’s new FUSA, don’t hesitate to drop me a line or give me a call, via the “Contact” page at the top.

UPDATE: Every so often, I need to remind readers that nothing on this blog should be taken as legal advice. My posts are intended to provide the public with general information, and some light academic discussion. If you need legal advice, please call a lawyer.

Connecticut Lawmakers Consider Drone Rules

Today we have links to a couple of local reports on a hearing before Connecticut lawmakers regarding the creation of possible drone rules.

Both reports feature a demonstration by Peter Sachs, who continues to do yeoman’s work on behalf of small drone operators.  An excerpt of Peter’s testimony can be viewed here.

As usual, the media emphasizes privacy concerns while saying next to nothing about the wide range of proven and potential benefits of this technology.  We have unfortunately come to expect this kind of willful ignorance from reporters.

Some legislators fare no better.  Consider the comment from State Rep. Mary Mushinsky, who said, “We had one incident in New Jersey where somebody shot down their neighbor’s drone because he was using the drone to harass the neighbor.”

With all due respect, ma’am, we have seen no report suggesting that the operator was harassing anybody.  Please, learn the facts before you cast your vote on anything pertaining to this issue (or any other issue, for that matter).

Stupidity aside, the Connecticut legislature appears ready to abstain from instituting a moratorium on drone use.

Self-Defense Against Drones

The use of self-defense against drones has become a hot topic, especially in the wake of the case of a New Jersey man who shot down a drone that was flying over a neighbor’s property.

In a guest column at the ever-valuable Volokh Conspiracy blog, law professor A. Michael Froomkin and his research assistant, Zak Colangelo, present their thoughts on the law of self-defense against drones. They offer a great deal of food for thought, and we recommend reading the whole thing. But while we agree with some of their arguments, we have reservations about others.

Froomkin and Colangelo begin with a general observation about the applicability of self-help doctrines to robots:

[W]hen a person fears for her safety, property, or privacy, the same self-help doctrines that govern other issues should govern a person’s use of self-help against a robot, whether that robot is operating on land, air, or sea. That is, an individual threatened with harm should be able to employ countermeasures that are reasonable in proportion to the harm threatened. The rule shouldn’t be different just because a robot poses the threat. Thus, as a general matter — but subject to some pretty important exceptions — a person who reasonably fears harm from a robot has a right to act to prevent that harm, up to and even in some — but far from all — cases shooting it down.

It is important to note, they point out, that the law treats robots as property. Because the law places a greater value on human life than it does on property, “[a]cts of self-defense that would be unreasonable when threatened by a human will in many cases be reasonable — in an otherwise similar situation — in response to threats from a mere chattel.” However, “[t]he toughest question is the scope of permissible self-help when individuals fear for their privacy rather than for their safety or property….” (emphasis added).

Froomkin and Colangelo point out that, whereas a threat to one’s property is easier to quantify, a threat to one’s privacy is not:

A trespassing, spying drone can do a lot of damage, but privacy harms are hard to monetize, especially ex ante.* That means it is hard to weigh the potential damage against the harm that the self-helper risks doing to the offending chattel. Not only is privacy is hard to value in general, but in this case the victim cannot know in advance how the operator of the drone intends to use the photos, hacked wifi, or whatever the drone may be collecting.

In light of this uncertainty piled on difficult valuation, we argue that the scope of permissible self-help in defending one’s privacy should be quite broad — else privacy will inevitably lack the protection it deserves. There is exigency in that resort to legally administered remedies would be impracticable — the drone will be long gone — and worse, the harm caused by a drone that escapes with intrusive recordings can be substantial and hard to remedy after the fact. Further, it is common for new technology to be seen — reasonably — as risky and dangerous, and until proven otherwise drones are no exception. At least initially, violent self-help will seem, and often may be, reasonable even when the privacy threat is not great, or even extant, at least when the risks of collateral damage are small.

While recognizing that those who operate drones on the periphery of one’s property probably have some valid First Amendment claims, Froomkin and Colangelo “understand why people would be concerned to learn that drones might someday aim telephoto lenses into their bedrooms from the sky.”

Because an average person is likely to be unable to immediately assess a drone’s threat to his or her privacy, they argue that “[t]ort law is likely to be solicitous of the property-owner’s need to make quick decisions under uncertainty. That solicitude will not, however, extend to actions that presented a reasonable risk of danger to third parties, such as shooting into the air in populated areas….” (emphasis added).

We whole-heartedly agree with the latter point regarding actions that present a danger to others, but think that their underlying assumptions are flawed. First, keep in mind that, as we have noted here, it is highly improbable that a civilian drone operating in Class G airspace is going to have any meaningful “spying” capabilities. It might be noisy and bothersome, but a drone is not very effective as a “peeping Tom” device (unless you’re sunbathing nude in your backyard or on your roof, in which case your claim to a reasonable expectation of privacy is probably dubious, at best).

Froomkin and Colangelo suggest that the uncertainty over drone capabilities could be resolved by, first, instituting a blanket ban on weaponized drones in the U.S. We think this is a reasonable suggestion. But, then again, how have blanket bans on weapons worked out in the past? The track record is not so great.

In any event, a small drone is unlikely to be a useful weapons platform. As anyone who has fired a gun can attest, the kickback from discharging a firearm would be just as likely to send a small drone tumbling out of the sky as it would be for the drone to hit its intended target.

Next, they propose that

all mobile robots should be required to carry warning markings, lights, and the equivalent of a Vehicle Identification Number (VIN) that would be recorded in a state or national registry…. Although far from perfect, these notices would be calibrated not just to warn of the drone’s presence, but also to say something about its capabilities, such as whether it carries a camera, and whether it is capable of capturing sounds or wifi or other information.

They further suggest that “[s]etting up a licensing regime and national or state-based registries would help connect a malfeasant robot to its owner or user, but no single system is likely to work in all circumstances.”

Froomkin and Colangelo seem to concede that their regime might well be unworkable, due in part to the problem of “cheating.” But we think that their proposal is far too complex, and relies far too much on unworkable regulatory regimes that will create more problems than they are likely to solve.

We propose a much simpler approach. First, we are persuaded that civilian “microdrones” should be regulated as consumer products, like cell phones and lawn mowers. We discussed that in a post on August 30, 2014. Off-the-shelf, consumer product regulations would solve many of the problems mentioned by Froomkin and Colangelo. For example, microdrones could be required to have built-in limitations on range and height. Naturally, they could be prohibited from having any sort of weapons capability.

Regulating microdrones as consumer products would also dispense with the need for a licensing regime. Model aircraft have been operated for generations without the need for mandatory licensing regulations. Maintaining a reasonable line-of-sight range limit for consumer model aircraft would more than adequately address concerns about hazards to public safety.

This sort of approach would remove much of the ambiguity concerning the capabilities of civilian microdrones. To the extent that any ambiguities might still exist, we think that the rules for using self-help against perceived threats from drones should be made abundantly clear.

We first note that we are adamant supporters of the right of self-defense as a fundamental human right. But with that comes an abiding respect for firearms safety and for the property rights of others.  Absent the sort of threat that would give rise to a justifiable use of deadly force under applicable state law, we would never advocate discharging a firearm in a heavily populated area. Froomkin and Colangelo seem to agree.

State legislatures could, if they wished, enact laws clarifying the circumstances in which a person may presume a threat of death or serious bodily harm from a drone, much like some state laws allow one to presume such a threat when an intruder invades one’s home or automobile. But we do not think that extending such a presumption to model aircraft would be a good idea.

The entire discussion might also be academic.

The FAA claims the authority to regulate or even prohibit the use of any flying object operated outdoors, no matter the altitude or distance from an airport, etc. If the FAA’s sweeping claim of jurisdiction is correct, then questions of federal/state preemption are going to necessarily come into play.

Current federal law prohibits the shooting down of any aircraft. Many small drones are already being regulated as “aircraft” by the FAA. Just consider the recent spate of 333 exemptions to the FAA’s “ban” on commercial drones. If one were to shoot down a drone being operated under such an exemption, it would be hard to argue that one had not just committed a federal crime.

But more than that, the FAA claims that the definition of “aircraft” includes model aircraft. Thus, according to the FAA, shooting down a model aircraft should be a federal crime. Until the FAA provides clarity on that, any discussion of whether a drone can be shot down by a civilian, under any circumstances, is unlikely to be useful.

*Lawyer-ese for “before the event.”

Dumb, Dumb-Dumb Dumb!

Does anyone remember the old “Dragnet” theme? Put that tune to the words, “Dumb, dumb-dumb dumb,” and you’ll have some idea of our reaction to this story:

A New Jersey man was arrested after police say he shot down a neighbor’s remote control drone.

According to investigators, officers with the Lower Township Police Department were called to a home in the 1000 block of Seashore Road on September 26th to investigate the report by a resident that his remote control helicopter (drone) was shot down.

The suspect – a neighbor – was booked on charges of Possession of a Weapon for an Unlawful Purpose and Criminal Mischief, and his shotgun was seized by police.

We have seen a number of people, in various discussion threads, say that if a drone ever flew near their property they would shoot it down. We have sought to discourage such thinking. There is practically no good reason to discharge a firearm in a populated area, unless you are being attacked and threatened with impending death or great bodily harm (and the law on this varies by state – some require that you first exhaust all means of safe retreat before using deadly force).

A civilian drone is not a threat to your life or safety. It might be annoying. It might be regarded as an intrusion on your privacy (but not really – see here). But unless you’re in the crosshairs of a military drone in some godforsaken battlefield (and chances are that, if you do end up in such a situation, you are unlikely to know what’s coming until it’s too late), there is never a reason to shoot at one. At best, you might be sued for destroying someone’s private property.

But the more likely outcome is a story like the one above.

UPDATE: David Michael Butts at the UAV Legal News discussion group on Facebook makes an excellent observation: If the FAA insists on calling small drones “aircraft,” why didn’t this man just commit a federal crime?

Are Drones Are Invading Our Privacy?

Business Insider has a well-written article on the issue of whether we should be concerned about drones invading our privacy, and whether new laws are needed to address those concerns. “Private citizens,” the article notes, “have grown increasingly concerned that these technologies could invade their privacy.”

Attorney Brendan Schulman – who has become the go-to guy for comments on sUAS issues – provides a healthy dose of context to these concerns:

As Schulman points out, most states already have laws to address the type of invasions that concern people. For example, peeping tom laws criminalize peering into someone’s windows. And private property laws prevent someone from building a treehouse over their neighbor’s yard. You likely can’t fly a drone there for the same reason, Schulman says.

“If I’m taking pictures through a window,” he said, “and I use a broom stick instead of a drone, it’s the invasive behavior that concerns lawmakers — not what you use.”

The article notes that the camera technology for most civilian drones is not very useful for surveillance. The writer points to this wide-angle city-scape of Seattle, taken by a drone photographer, which illustrates the point that it’s actually very difficult to photograph any sort of details unless the drone gets very close to the subject.

seattle-police-report-drone-photo

Our view is that privacy concerns are just another example of the sort of moral panic that tends to follow in the wake of our permanent, 24/7 news cycle, where perceptions of an issue and reality tend to get out of alignment. We will be observing developments, but contrary to the conventional wisdom in the media, it is neither the most interesting, nor the most important, issue relating to drone law and regulations.

The Fight Over Drones As Seen From a Drone

Here’s a pretty cool way of explaining some of the legal issues surrounding drones in a graphic nutshell. It begins with the question, “Who owns the air above my house?”

The full article can be viewed here. The reporter, Steve Henn, seems to have that rare gift of being able to explain complex issues in a simple, straightforward manner. Heck, he’d make a pretty good lawyer (no, really!).