Note: This article provides general information, not legal advice. Consult a local attorney with any questions.
Drones afford many benefits, some quite extraordinary, including assisting with aerial mapping, education, real estate and cropland management, urban planning, power line and pipeline inspection, wildfire management, disaster response administration, emergency medicine deliveries, telecommunications, journalism, doorstep package delivery, refinery monitoring and, of course, movie making. However, they also present some potential societal detriments, serving as accomplices in drug smuggling, terrorism, assassination, and voyeurism. As a movie maker, you should be aware that even their lawful use comes with some invasion of privacy risks.
Drones are improving technologically at the speed of smartphones, not airplanes. Drone regulations will change as drones and their embedded technologies change. As of June 2021, some 871,000 drones were in use in the United States, about 41% commercially and 59% recreationally, with more than 231,000 Federal Aviation Administration (FAA) certified remote pilots.
“There is no other technology that is as accessible to the general public and poses as tangible a threat to privacy and safety as the drone,” said Hillary Farber, a professor at the University of Massachusetts. Others would argue that this is an overstatement and that smartphones and other personal electronic devices, which are widely used and generally not feared, pose a much graver privacy threat.“
Drone Regulation Overview
Federal, state and local laws regulate drones and other unmanned aerial vehicles (UAV) and unmanned aircraft systems (UAS). In the mid-20th century, the U.S. Supreme Court held that for property owners to fully enjoy their land, they must have exclusive control of the “immediate reaches” of the atmosphere around them and own at least as much of the space above the ground as they can occupy or use in connection with the land.
In 2016, the FAA finalized its initial drone regulations. But the FAA did not expand its jurisdiction over safety to encompass privacy issues, leaving the topic to existing state law and other privacy protections.
In January 2021, the FAA published its final remote identification (Remote ID) regulations. Remote ID provides information about your drone in flight, such as the drone’s unique identity, location, altitude and control station or take-off location. Authorized public safety organization employees can request your identity as the drone’s owner from the FAA. Again, FAA regulations will generally focus on safety, not privacy.
Some states have no laws regulating drone activity. In Colorado, where the authors reside, and whose law this article focuses on, regulations make it unlawful to use drones to look for, scout, or detect wildlife as an aid in the hunting or taking of wildlife. Colorado’s and other states’ so-called “Peeping Tom” laws also may apply to some drone-based surveillance.
Federal, State, and Local Law Pecking Order
Generally, federal law trumps (preempts) state law and state law trumps local law. The potential for conflict among federal, state and local commercial drone needs and privacy expectations is bound to increase. Industry is likely to push for explicit or implied exceptions from local regulation, seeking a uniform nationwide playing field. Drone operators complain of situations where FAA regulations require drones to fly below 400 feet, yet some local regulations require them to fly at or above 500 feet. Unfortunately, lawyers may be needed to navigate this legal thicket.
But regulations are not all stacked against you. Because the FAA considers drones to be aircraft, 18 U.S.C. §32 prohibits damaging or destroying drones and persons using firearms or other means to attempt to destroy a drone may violate other laws. Similarly, electronically jamming a drone may violate federal law. While the law can protect you and your drone from injury, the subjects that you videotape still have certain privacy rights that may support claims against you. Also, they may also be able to lodge claims against you if your drone injures people, damages other persons’ property, invades the airspace above their properties or annoys other people’s peaceful enjoyment of their homes and businesses. This article focuses on privacy, trespass and nuisance concerns in and the law of Colorado, our home state, but it also provides a framework to consider these issues elsewhere in consultation with other states’ counsel.
Drone Operations – Invasion of Privacy and Trespass
Certain states recognize various “torts” (i.e., wrongful acts or civil wrongs) for which you may be civilly liable when your drone operations invade or interfere with the privacy or solitude of others. Simply stated, the right to privacy is the right to be let alone.
You should be aware of four kinds of tort claims: invasion of privacy by intrusion, invasion of privacy by public disclosure of private facts, invasion of privacy by appropriation and invasion of privacy by publicity that unreasonably places a person in a false light in public.
Invasion of Privacy by Intrusion
To prove invasion of privacy by intrusion, a person whom you videotape must establish that (1) you intentionally invaded the person’s privacy, (2) the invasion would be very offensive to a reasonable person, (3) the person suffered damages and (4) the invasion was a cause of the person’s damages.
Invasion of privacy by intrusion does not require you to physically intrude or make your video available to the public. The essence of the tort is interference with the person’s solitude, seclusion or private affairs and concerns. Entering the person’s premises, electronic eavesdropping or spying, unauthorized access to the person’s postal mail or email or repeated hounding or harassment may result in a lawsuit against you. Potential damages a court may impose for intrusion include compensation for (1) harm to a person’s privacy interest resulting from the invasion, (2) mental suffering, (3) special damages and (4) nominal damages if no other damages are proven.
The good news is that you generally are not liable for reviewing publicly available information or observing or photographing someone in a public place that can be observed by others. Generally, observing and videotaping a person’s premises from outside the property’s perimeter is not an actionable intrusion, even if a high-powered lens is used to magnify the view of what can be readily seen. The person has privacy rights not only if he or she has an ownership (proprietary) or possessory interest in the property, but also if, for example, the person is merely a tenant, a hotel guest, or a storage locker lessee. With regard to a claimed wrongful intrusion, the key element is whether the person has a legitimate expectation of privacy.
Aggrieved parties may allege that you invaded their privacy by a drone listening in, looking in or merely invading their space. Whether you have unlawfully invaded a person’s space will depend on the circumstances. As technology improves, the law will evolve in response to such changes, typically balancing privacy rights and societal expectations against commercial needs and realities.
Invasion of Privacy by Public Disclosure of Private Facts
To prove you invaded a person’s privacy by public disclosure of private facts, a person must establish that (1) you made a fact about the person public; (2) the fact was private before disclosure; (3) a reasonable person would find the disclosure highly offensive; (4) at the time of the disclosure, you acted with reckless disregard of the private nature of the fact disclosed (i.e., you knew or should have known that the fact disclosed was not of legitimate concern to the public); (5) the person suffered damages; and (6) your public disclosure of the fact was a cause of the person’s damages.
Generally, the disclosure must be of a previously private matter; it cannot involve information that was already public, that was available from public records or that the person left open to the public. Public disclosure is not highly offensive if you disclosed normal daily activities or unflattering conduct that caused merely minor annoyance. In other words, you can probably use your drone to videotape your neighbor’s leaf-raking activities while he was wearing a Batman outfit, but you may have to draw the line at disclosing his romantic shenanigans with the lady in a Batwoman costume who looks suspiciously like the elementary school teacher who lives across the street. That activity, however interesting, was private.
Remember, the US Constitution’s First Amendment generally allows you to disclose even highly offensive private facts if those facts have some substantial relevance to a matter of legitimate public interest. Such matters might include murders and other crimes, suicides, accidents, fires, natural catastrophes, disease and other topics of popular appeal. When a movie maker raises a First Amendment privilege, the subject’s right to keep information private must be balanced against the media’s right to disseminate newsworthy information publicly.
Invasion of Privacy by Appropriation
Appropriation involves the use of an individual’s name, likeness or identity without consent for purposes such as ads, fictional works or products. To succeed in an appropriation lawsuit, the person whom you videotaped must prove (1) he or she didn’t grant permission for the use of his or her identity; (2) you used some protected aspect of the person’s identity; and (3) you used the person’s identity for your immediate and direct benefit.
Different states employ different standards to protect aspects of identity. In California, for example, the law protects a person’s name, likeness, voice, signature and photograph. In Florida, the law protects only a person’s name, likeness, portrait and photograph. Also, although many states define “benefit” to be commercial, such as using the person’s image to advertise a product, some states go even further, protecting a person’s likeness even when used for a noncommercial benefit such as impersonation for professional gain.
Invasion of Privacy by Placing a Person in a False Light
In order to win a lawsuit under the “false light” privacy laws, the person whom you videotaped must show that: (1) your video includes information placing the person in a false light; (2) you failed to use reasonable care in determining whether the video created a false impression about the person; and (3) the false light would be highly offensive to a reasonable person. Reasonable care is the usual standard against which such conduct is measured.
But if the person you videotaped is a public figure or public official, the law is more lenient for movie makers. It protects a public figure’s privacy only if he or she can show (1) your video includes information placing the person in a false light and you knew this was the case or you recklessly disregarded the truth; and (2) the false light in which the person was placed would be highly offensive to a reasonable person in the person’s position. A public figure or public official, however, generally cannot bring a false light invasion of privacy claim against you based on a statement related to the performance of his or her public life or duties.
Although a lawsuit for false light invasion of privacy may be brought against you if you videotape something untrue about a person, in some instances even a true statement may form the basis for false light liability if it creates a false impression about the person.
Affirmative Defenses and Damages
In addition to the First Amendment’s free speech privileges and immunities, and any similar protections afforded by your state’s law, you have an affirmative defense to an invasion of privacy claim if you can show that you have obtained consent from the person you videotaped. This defense applies if the person being videotaped led you, the videographer, to reasonably believe – by words or conduct – the person had authorized or agreed to the photographer’s conduct, and you acted in a manner consistent with the scope of such authorization or agreement. Also, remember that many states permit any person whose name, portrait, image or picture is used for commercial purposes without written consent may sue and recover damages – even if their privacy has not been invaded.
Most states impose time limits (statutes of limitations) on bringing false light and other invasion of privacy claims. A local lawyer can help you identify these time limits and what event starts the clock to run against the persons who might bring such claims.
Money Damages Exposure
If found liable for invasion of privacy in Colorado and elsewhere, you may be responsible for money damages for personal humiliation, mental and physical anguish and suffering, inconvenience, impairment of quality of life, reputational injury and impairment to a person’s credit standing, as well as loss of income. Remember that liability can attach not just to those who take videos, but also those who direct, participate in, assist with or promote the videotaping.
Trespass and Nuisance
Trespass and nuisance claims do not directly implicate a landowner’s right of privacy, but the potential liability exposure they present may discourage drone operators and movie makers. Trespasses and private nuisances typically involve the invasion of or interference with a person’s private property rights, while a public nuisance often requires a balancing of a property owner’s versus others’ economic interests, weighing the gravity of the harm against the utility of the conduct.
Trespass claims have traditionally been limited to the intentional physical entry or intrusion upon or under another’s property causing physical damage to the property, or an intentional intangible intrusion with resulting physical damage, but not necessarily simply entry into the airspace above the property – although the law in this area is rapidly evolving. Historically and practically, lawsuits were rarely if ever brought against persons who flew kites above or tossed baseballs or flying discs across their neighbor’s property. However, hovering and buzzing drones with prying eyes (cameras) and ears (microphones) are likely to upset longstanding expectations and norms, leading to evolving legal liabilities and lawsuits.
In contrast, nuisance claims may involve noise, light, shadow and odor conditions affecting another’s use and enjoyment of their property without accompanying physical damage. If your drone activity physically damages private property, the property owner can sue you for unlawful trespass. All that is required is an intent to enter another’s property or to do an act that, in the natural course of events, results in the intrusion.
A private nuisance is a non-trespassory invasion of another’s interest in private use and enjoyment of his or her land. To prove a private nuisance, a person must establish a substantial invasion of his or her interest in the use and enjoyment of the property when such invasion is (1) intentional and unreasonable, (2) unintentional and otherwise actionable under the rules for negligent or reckless conduct, or (3) so abnormal or out of place in its surroundings as to fall within the principle of strict liability. Stated another way, a nuisance is an intentional, negligent, or unreasonably dangerous activity resulting in the unreasonable and substantial interference with a person’s use and enjoyment of his or her property. Unreasonableness is a question of fact that requires weighing the gravity of the harm against the utility of the conduct causing that harm. Generally, to be unreasonable, an interference must be significant enough that a normal person in the community would find it offensive, annoying, or at least inconvenient.
Aerial Trespass and Nuisance
“Aerial trespass” assumes a property owner has a right to some portion of the airspace above the owner’s property. Presently, whether an aerial trespass has occurred under the law depends on how courts construe a particular state’s elected officials’ written laws (statutes) and its judge-made laws (the common law) of trespass, and whether and how federal law and regulations might preempt these laws. Congress has placed navigable airspace in the public domain, so the surface owner’s property interest in airspace above the land is generally limited to that airspace which is below navigable limits.
If drones are treated as aircraft, their freedom of flight should track that of commercial and private aircraft. However, FAA regulations currently require drones to fly below navigable airspace (not more than 400 feet from ground level) for safety and other reasons. This means that there is a 400-foot zone between ground level and the authorized ceiling where federal regulations require drones to fly that may encroach on a landowner’s ownership of space above the lands, subject to an aircraft’s overflight rights. It is unsettled in many localities whether drones can fly legally in some or all of this private or governmental airspace, so direction from a local lawyer is advisable.
Thus, many questions persist as to when drone operation might constitute an actionable trespass or nuisance. Your intent in an invasion of privacy case is important. Your high-tech drone may take extremely high-resolution photos of high-rise bedroom windows, capturing some residents in flagrante delicto, but if you have no intent to view, use or disseminate the images, you may not be liable for trespass or nuisance.
The Future of Privacy Law
As technology and reasonable expectations of privacy change, so does the law. Within the last decade, the U.S. Supreme Court held that the Constitution’s prohibition against unreasonable governmental searches originating in 1791 extends to a law enforcement officer’s placement of a GPS tracking device in a car. Farber has observed that, compared to GPS, the “breadth and scope of information that can be amassed by aerial surveillance tracking large numbers of people is far greater.” As drone technology advances, privacy law will be shaped by and evolve with these changes.
Advances in drones and other UAVs, computer hardware and software, information aggregation, nano-electronics, remote sensing, acoustics, digital imagery and disc storage are constantly occurring. These developments, when combined with a legal system that is regularly playing catchup with technological progress, raise a lot of uncertainty. State and federal regulations may help curb drones from intruding into our private worlds.
As you have heard before, when in doubt about whether your drone activities are unlawful, consult an attorney, preferably for a written opinion.
Ronald M. Sandgrund is from Boulder, Colorado, of counsel with the national law firm of Burg Simpson Eldridge Hersh Jardine PC, and a member of its Colorado construction defect group. He is also a university adjunct professor (Entrepreneurial Innovation and Public Policy) and a frequent lecturer.
Mark Levy is an award-winning amateur movie maker and intellectual property attorney based in Colorado.
The authors thank Christopher Robertson of the Colorado State University (CSU) Drone Center for his technical assistance, but the authors assume all responsibility for the contents of and any errors in this article. This article is derived in significant part from the copyrighted work “Privacy in a Time of Drones,” authored by Ronald M. Sandgrund and published in the June 2021 issue of Colorado Lawyer. Mr. Sandgrund’s article drew on research, writing, and scholarship from around the country, as cited in that article.