How Do You Define Privacy When It Comes To Drones?

Mar 19, 2015

Charles Lockwood's drone.
Credit Nick Evans

Drones.  They’re getting cheaper and hobbyist pilots are finding more and more ways to use them.  Many see huge commercial potential, but state lawmakers are just as concerned about invasion of privacy

This Monday, Rep. Larry Metz (R-Groveland) introduced a bill aimed at limiting the use of drones for surveillance.  The measure would make it illegal to use a drone to monitor people or property when there is a reasonable expectation of privacy.  It passed committee easily.

“Briefly the need for the bill is the widely available use of drones that can be used to surveil people in violation of their privacy,” Metz says.  “They can hover a drone outside your bedroom window and film the inside of your house right now.  If you think we need a civil remedy to prevent that from happening then this bill should be supported.”

Charles Lockwood is a drone hobbyist who lives in Tallahassee.  He has an aircraft with four rotors arranged at the corners of a square.  In the center is a white plastic processing unit—it kind of looks like the head of those creatures in the movie Alien.  When it gets going it sounds like a swarm of particularly angry bees.  Lockwood flies the craft with a controller hooked up to a small tablet.  On the screen you can see a drone’s eye view.

“I’m looking at this, and it’s telling me I’m six feet off the ground, and I’m a distance of two point five feet from where I took off,” Lockwood says, before pulling on the controls and sending the craft up. 

The buzzing recedes as the drone floats up to about 100 feet.  On the screen, you can see far off into the distance—miles into the distance. 

The view from 100 feet up.
Credit Charles Lockwood

Lockwood says it’s a completely different perspective, and that’s why the drone bill gives him pause.  He worries it may be written broadly enough to deter hobbyists or commercial operators from using drones. 

That’s because while the bill defines image and imaging device broadly, it has no definition for surveillance.  At just 100 feet up, Lockwood can see miles off in any direction, and if anyone within that view can bring a case against him, using a drone becomes risky. 

But Metz says that’s not his intent—and he’s aware of concerns about the definition of surveillance.

“The absence of definition of surveillance in the bill has been pointed out in one of the staff analyses, and we’re taking a look at that,” he says.  “Again, I’m trying to protect individuals’ reasonable expectations of privacy, and not create the opportunities to unreasonably claim that that’s been violated.”

And Metz argues that notion of a reasonable expectation of privacy will keep people from bringing frivolous cases against drone pilots.

“So for example, uses of drones in public places where someone has a legal right to be, if the drone is where a person would have a legal right to be, because its being flown in a public park or on a public street, then the bill doesn’t even come close to prohibiting that,” Metz contends.

Reasonable expectation of privacy is a legal test that asks first, does a person believe they’re in a private place?  And then, is that belief reasonable?  If the answer is yes to both, then they have a reasonable expectation of privacy. 

But Metz’s bill refines this somewhat by adding a presumption of privacy when a person cannot be seen by others at ground level, regardless of whether they’re visible from the air.  So, for instance, if your backyard has a six-foot wooden fence, that expectation would seem to apply.  But when you add it all up, the new presumption is problematic.  Metz says using a drone on a public street would be fine, but you don’t need to climb all that high above that public street before private backyards become visible.    

Your intrepid reporter and Charles Lockwood.
Credit Charles Lockwood

“And as I hope I’ve demonstrated,” Lockwood says, “a couple hundred feet—200 feet, well within any guidelines—you can see a lot.” 

“And again,” he continues, “the tool is neither good nor bad, it’s what you do with it.”

Lockwood continually returns to this idea of not confusing the tool with its use.  And for his part, Metz is working on language to allow state agencies to use drones for work like surveying or insurance adjusting after a storm.  

He says he has no illusions about it passing in its current form.

“The premise of the question is that the bill will pass in its present form,” Metz says with a bit of chuckle, “I actually don’t think it will be passed in its present form.  I think it will be changed along the way and made better.”

The bill will need to pass two more committees before it makes to the floor.