Citizen Drone Use Sparks Privacy Concerns On State And Federal Levels

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Drone use by citizens has become an ever-increasing trend since they burst onto the scene in the early 2010s and sales have rapidly increased.  Drones are used by consumers and companies in a variety of contexts: promotional videos, weddings, news footage, and even the 2018 Winter Olympics.  In 2013 Amazon first introduced its idea to use drones for delivering packages, estimating such use to begin by 2015.  So why weren’t Amazon packages being delivered by drones in 2015?  One reason was that the Federal Aviation Administration (FAA) was in the process of drafting regulations for the use of unmanned aircraft—the term used by the government when referring to drones.

Non-Governmental Use Drones Went Unregulated By Federal Law Until 2015

The FAA first introduced regulations for drones in 2015, which required users to register their drones with the FAA if they weighed .55 pounds or more.  The current laws are codified under 14 C.F.R. § 107 – Small Unmanned Aircraft Systems and require registration for drones weighing more than .55 pounds and less than 55 pounds.  While there are drones weighing under .55 pounds, the majority of drones used by everyday citizens will require registration with the FAA.  The $5 registration can easily be done online and requires the person registering the drone to be 13 years of age or older and a U.S. citizen or legal permanent resident.  Visiting foreign nationals must register their drone upon arrival in the United States.

Citizens who plan to use their drones for commercial purposes (e.g., photography business, creating wedding videos, promotional videos, etc.) must become an FAA-Certified Drone Pilot.  Applicants must be 16 years of age or older and take a test covering the Part 107 rules at an approved testing center.  The registration cost is $5 and remains valid for three years.

However, in either use, recreational or commercial, the maximum height a drone can be flown at is 400 feet above ground level (AGL) or, if higher than 400 feet AGL, remain within 400 feet of a structure.  This is because anything above 400 feet is considered federally navigable airspace.  Moreover, a drone must remain in the user’s visual line of sight.

United Parcel Service Becomes The First FAA-Approved Company For Drone Delivery

While Amazon started the conversation about commercial drone delivery, it did not cross the finish line first when it came to actually receiving FAA approval for drone delivery.  That race was won by the long time package delivery giant United Parcel Service (UPS), receiving approval in September 2019.  The FAA granted UPS a “Part 135 Standard” certification, which has no limits on the size or scope of operations.  This exempts UPS from being required to keep drones within the operator’s visual line of sight, a requirement that would have essentially made it impossible for UPS to use drones in delivering packages.

Prior to receiving approval, UPS began conducting drone delivery tests in March 2019.  These tests were done exclusively with WakeMed hospitals in Raleigh, North Carolina, where over 1,000 flights were conducted.  Scott Price, chief strategy officer at UPS, stated that the tests were successful, with there being no crashes and only “a few” flights canceled because of mechanical problems or bad weather.

Drones And The Right To Privacy

With laws surrounding “appropriate” drone usage just beginning to form, there are many unanswered questions surrounding one’s right to privacy with regard to drone use in residential areas.  The tort of “intrusion upon seclusion” comes to mind when considering drone use around the homes of others.  In Bullitt County Kentucky, one man took matters into his own hands by shooting a drone down when he felt that it was physically intruding into his family’s private space.

In that case, Boggs v. Merideth, the plaintiff was flying his drone, which included a camera, around a residential area that included Merideth’s home.  Merideth’s daughters were sun bathing on the patio when they reported that a drone hovered over them for some time, then went on its way.  Merideth went outside and the drone later came back and again began hovering over the property.  This was when Merideth shot it down.  The plaintiff, Boggs, sued for trespass to chattels regarding the damage to his drone.

At trial in the Bullitt County Court, there were disputes as to how high the plaintiff’s drone was hovering, and whether it was in usable airspace with regards to a trespass to land claim or if the drone’s height was in an area where one would have a reasonable expectation of privacy.  The Court sided with Merideth, dismissing the claim against him by weighing his right to privacy and right to be free from Bogg’s drone trespassing over his land.

Putting aside disputes about how high the drone was hovering, most people would agree that their privacy is invaded when a camera-equipped drone begins hovering over their backyard at a height that could record details of their personal life.  When it comes to Merideth, whether he was in the wrong or not, it is hard to fault a man for looking out for his daughters’ best interest when there are so many stories of people viewing intimate and private details of women (e.g., former ESPN reporter Erin Andrews was secretly filmed in her hotel room).

There Is No Right To Privacy In Federally Navigable Airspace

Historically, a land owner’s property rights gave them rights in the land below and the air above, continuously, as though it never ended.  With the realization of subsurface mineral rights and technology, that is no longer true.  And since the 1980s, a person has no reasonable expectation of privacy when being viewed from federally navigable airspace—that which is 400 feet and above.  See Florida v. Riley, 488 U.S. 445 (1989); see also California v. Ciraolo, 476 U.S. 207 (1986).  Although these cases involved a helicopter and a plane, respectively, the same logic applies to drones.  Thus, if a party can prove at trial that he or she was flying their drone in federally navigable airspace, they would have a legitimate defense to any trespass or intrusion upon seclusion claim brought against them.

North Carolina Law Governing Drone Use

While the FAA has exclusive authority over the use of airspace in the United States, the North Carolina Department of Transportation (NCDOT) “has the authority to implement and manage regulations pertaining to state laws concerning drone operations within the state.”  There is no state license requirement for those who fly drones solely for recreational purposes (i.e., those not flying a drone for monetary or business purposes).

However, those who fly drones for commercial purposes (i.e., those flying a drone for monetary or business purposes) must take and pass the NCDOT’s Unmanned Aircraft System Operator’s Knowledge Test.  You must pass the test as a prerequisite to applying for a state permit.  To obtain a permit, drone operators must provide proof of their FAA-Certified Drone Pilot certificate or other authorization to conduct commercial unmanned aircraft system operations from the FAA. Certainly as technology continues to progress, there will be more disputes surrounding recreational and commercial drone use and the states and Federal government will have to enact legislation to handle these matters.