Drone Privacy: What Laws Apply To Their Operation?

The use of drones has raised concerns about privacy and surveillance. In the US, the Federal Aviation Administration (FAA) is responsible for regulating drones, but state laws also play a role. The FAA has a small but growing competence in drone privacy, and some states have passed laws to restrict drone usage over private property and certain facilities. For example, the Texas Privacy Act includes Surveillance and No-Fly provisions that restrict unauthorised drone surveillance and limit drone flights over critical sites.

The Fourth Amendment of the US Constitution and state constitutions protect citizens against unreasonable searches and seizures. Drone usage by law enforcement agencies for surveillance or to conduct a search has been a key focus of drone legislation. As of 2024, 18 states require law enforcement agencies to obtain a search warrant to use drones for surveillance or to conduct a search.

Drone usage by private citizens (non-governmental actors) has also been addressed in state legislation to prevent invasions of privacy. As of 2024, at least 15 states have passed laws providing privacy protections from other citizens that are specific to drones. These laws vary considerably and may include restrictions on flying over or filming private property, height restrictions, consent restrictions, and rules prohibiting the use of drones for harassment or voyeurism.

Drone surveillance and the Fourth Amendment

Drone surveillance by government agencies has raised concerns about the violation of the Fourth Amendment rights of citizens. The Fourth Amendment protects citizens against "unreasonable searches and seizures", and mandates that warrants be issued based on probable cause.

The use of drones for surveillance has been a concern for lawmakers and privacy advocates, who worry about the potential for pervasive and constant surveillance. This has led to lobbying campaigns that have resulted in laws in several states regulating the use of drones by law enforcement agencies. However, these laws often focus on the technology rather than the harm, creating perverse results where sophisticated surveillance technologies from manned aircraft are allowed, while benign uses of drones are prohibited.

The Supreme Court has addressed the issue of aerial surveillance in several cases, including California v. Ciraolo, Florida v. Riley, and Dow Chemical Co. v. United States. In these cases, the Court ruled that aerial observations of the curtilage of a home are generally not prohibited by the Fourth Amendment, as long as they are conducted from public navigable airspace, in a non-intrusive manner, and do not reveal intimate activities. However, the Court has also acknowledged that the use of advanced technology may change this inquiry, and that surveillance using highly sophisticated equipment may be constitutionally proscribed without a warrant.

The use of drones by government agencies has been a subject of debate, with some arguing that it provides unprecedented spying capabilities that violate the Fourth Amendment. For example, in Long Lake Township, Michigan, the Township hired a contractor to fly a drone as low as 150 feet over a couple's property multiple times over two years without a warrant, to gather evidence of alleged zoning violations. In another instance, the New York Police Department acquired 14 drones for various tasks, including monitoring giant crowds, and while the NYPD insisted that the drones wouldn't be used for warrantless surveillance, privacy advocates pushed for legislation to ensure transparency and compliance with department policies.

The legality of drone surveillance under the Fourth Amendment depends on several factors, including the purpose, duration, and technological capabilities of the operation. The longer and more precise the surveillance, the more constitutionally suspect it becomes. Additionally, retrospective surveillance capabilities, where data can be stored and accessed at a later date, may also trigger Fourth Amendment protections, as it allows law enforcement to track a person's movements over an extended period.

To address the concerns of privacy advocates and balance the needs of law enforcement, legislators have proposed various recommendations. These include adopting a property rights approach, where landowners have the right to exclude aircraft from a certain altitude above their property; crafting simple, duration-based surveillance legislation to limit the aggregate time of surveillance on specific individuals; adopting data retention procedures with heightened levels of suspicion and procedural protections for accessing stored data; and enacting transparency and accountability measures, such as requiring government agencies to regularly publish information about their use of aerial surveillance devices.

While the Fourth Amendment has been a cornerstone of privacy protection since 1791, the increasing use of drone technology by government agencies continues to raise complex legal and ethical questions that require careful consideration and creative solutions.

Privacy laws and private citizens

The use of drones by private citizens has raised concerns about privacy and surveillance. Drones are now more affordable and accessible to the general public, and their ability to collect data without a person's consent or knowledge has sparked much debate.

Privacy Concerns

The crux of the issue lies in drones' ability to hover over private properties and collect data. While this can be useful for disaster management and logistical planning, it also raises significant privacy concerns. For example, a drone could record someone sunbathing in their backyard or children playing outside without their knowledge or consent.

Court Cases

Several court cases have addressed drone privacy issues:

• The Alaska Supreme Court ruled that a warrant is required for zoom-lens aerial photos by police, upholding the Fourth Amendment right to privacy from technological surveillance by authorities.
• The Appeals Court backed the Texas Privacy Act, which regulates drone usage over private property and certain facilities, with criminal penalties and civil liabilities for breaches.
• A case in Michigan involves a claim against Long Lake Township for allegedly using drone-captured imagery of private property without a warrant.

Federal and State Laws

There is ongoing discussion about whether the federal or state government should be primarily responsible for regulating drones and privacy. Some argue for a blended approach, with states taking the lead and the federal government in a supporting role.

At the federal level, the Federal Aviation Administration (FAA) has a growing competence in drone privacy matters. While the FAA's primary focus is on aviation safety, it has increasingly addressed privacy concerns, such as by including privacy rules for test sites.

At the state level, several states have passed legislation related to privacy and drones. These laws generally fall into two categories:

• Requiring law enforcement to obtain a warrant before using a drone for surveillance or search.
• Prohibiting private citizens from using drones in ways that invade someone's privacy, such as by trespassing, filming over private property, or harassing individuals.

As of 2024, 24 states have passed legislation related to drone privacy, including warrant requirements for law enforcement and protections from privacy violations by non-government operators.

Other Considerations

In addition to privacy concerns, drones also raise security issues, especially regarding critical infrastructure and correctional facilities. Several states have enacted legislation to address these concerns, such as by restricting drone access near critical infrastructure and prisons.

The increasing use of drones by private citizens has raised important privacy and security concerns. While there is ongoing discussion about the appropriate regulatory approach, both federal and state governments have taken steps to address these issues. As drone technology continues to evolve and become more prevalent, further legislation and regulations will likely be needed to protect privacy and security.

Drone use near critical infrastructure

Drone usage has sparked a lot of debate around privacy laws. The affordability, versatility, and accessibility of drones have led to their widespread use, from police departments to tech-savvy neighbours. This has led to concerns about drones hovering over private properties and collecting data without the owner's consent.

In the US, several authorities provide definitions of what constitutes critical infrastructure. The Cybersecurity and Infrastructure Agency (CISA) provides a comprehensive list of categories of infrastructure that are considered critical. These include the chemical sector, commercial facilities, communications sector, critical manufacturing, dams, defence industrial base sector, emergency services, energy sector, financial services sector, food and agriculture sector, government facilities, healthcare sector, information technology sector, nuclear reactors, materials, and waste, transportation systems, and water and wastewater systems.

The Federal Aviation Administration (FAA) prohibits drones from flying over designated national security-sensitive facilities, which include military bases designated as Department of Defense facilities, national landmarks such as the Statue of Liberty, Hoover Dam, and Mount Rushmore, and certain critical infrastructure such as nuclear power plants. The FAA restricts drone operations from the ground up to 400 feet above ground level for all types and purposes of drone flight operations in these areas.

In addition to the FAA's restrictions, some local governments have implemented their own laws that restrict drone use near critical infrastructure. For example, the state of Texas has implemented HB 1424, which prohibits flying drones near correctional facilities, certain sports venues, petroleum refineries, and chemical manufacturing facilities. Other states with local laws regulating drone use near critical infrastructure include Arkansas, Nevada, Oregon, Oklahoma, Arizona, and Delaware.

While there are laws at both the federal and state levels that restrict drone flight near critical infrastructure, there are also exceptions. Drones are used for industrial inspection of power lines, pipelines, communication towers, and manufacturing facilities. These exceptions are usually outlined in state laws, which may include the use of drones for maintenance, inspection, law enforcement, or with permission from the facility owner or operator.

The balance between regulating drone usage and the commercial potential of drone technology is a delicate one. Federal agencies need to address the privacy concerns of citizens while also considering the benefits that drones can bring, such as safer and faster inspection or maintenance of critical infrastructure.

Drone use near prisons

In the United States, the Federal Aviation Administration (FAA) is responsible for enforcing Federal Aviation Regulations, including those related to the use of drones. The FAA has restricted drone flights within the lateral boundaries of federal facilities, including prisons, up to 400 feet.

Some states have also implemented their own laws and regulations to address the issue of drone use near prisons. For example, DJI, a drone manufacturer, has locked out prisons as no-fly zones on its GEO Map, preventing drones from flying within the boundaries of prisons.

Additionally, prisons are employing anti-drone technologies to detect, track, and neutralize drones in their airspace. These technologies can also be used to locate the drone operator outside the prison's perimeter. Prison authorities are also using surveillance systems, including cameras and microphones, to monitor the activities of inmates and staff, which can help identify smuggling attempts.

The use of drones to smuggle contraband into prisons is a complex issue that requires a multi-layered defense system. This system should include a combination of traditional security protocols, anti-drone technologies, and innovative solutions to address the evolving challenges posed by drone technology.

Drone use near stadiums and events

Drone use is prohibited in and around stadiums that seat 30,000 people or more, beginning one hour before and ending one hour after the scheduled time of events such as a Major League Baseball Game, National Football League Game, NCAA Division One Football Game, and NASCAR Sprint Cup, Indy Car, and Champ Series Race. The Federal Aviation Administration (FAA) and the Stadium Managers Association (SMA) have created the "It's Game/Race Day: Leave Your Drone at Home" safety campaign to educate fans and local communities about these restrictions.

DroneShield is another organization that provides comprehensive UAS protection at stadiums and venues, safeguarding against terrorists, protesters, vandals, and disruptive fans. Their solutions support event management staff and security personnel with both fixed installations and temporary deployment options. DroneShield integrates seamlessly into existing security systems for highly accurate detection, real-time alerts, and countermeasures for open-air sites like sports stadiums.

The FAA is responsible for regulating U.S. airspace, and any state or local law that conflicts with FAA regulations may be preempted. However, privacy laws concerning drones generally fall into the jurisdiction of state and local governments. These laws can include requirements for law enforcement to obtain a warrant before using a drone for surveillance and prohibitions on private citizens from using drones to invade someone else's privacy. The specifics of these laws vary by state.

The use of drones near stadiums and events raises privacy concerns as drones can collect data and record videos and images without the knowledge and consent of individuals. This has sparked debates and court cases regarding the right to privacy and the regulation of drone usage.

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