Drones and the Law: What to Know Before You Fly

July 13, 2017

By Greg Scoblete

Lawn and drone photos: © Shutterstock

Drones may have liberated aerial photographers but they’ve also unleashed a variety of legal and ethical questions.

Many photographers saw the Federal Aviation Administration’s long-awaited ruling on drones (Part 107, in FAA regulation-speak) as the final “all clear” for the unfettered use of drones for commercial photography and filmmaking. But the FAA pointedly declined to issue any guidance on drone use and privacy, beyond a voluntary set of best practices published in conjunction with the National Telecommunications and Information Administration (NTIA).

This vacuum on the federal level has been filled by a patchwork of state and local laws governing the use of unmanned aerial vehicles (UAVs) that vary “wildly” depending on where you are, says Matthew Waite, professor of practice at the College of Journalism and Mass Communications at the University of Nebraska-Lincoln and founder of the school’s drone journalism lab. For photographers and journalists, it can be a time-consuming process to research what you can and cannot legally photograph with a drone, he adds.

“In Louisiana, for instance, you can’t use a drone to photograph ‘important facilities’ and those are described as chemical plants, oil and gas facilities, etc. But I can easily see why an investigative journalist would need to photograph those places,” Waite says. There’s also a law in Texas that prohibits publishing a photograph of someone from higher than 8 feet without their consent, Waite notes. “There are laws like this all over the place,” he adds.

“Are we concerned about the current state of drone laws? Absolutely,” says Jon Resnick, policy lead at DJI and former Associated Press journalist who led the agency’s drive to incorporate drones in its reporting.

Photo courtesy DJI

Drone advocates say existing peeping Tom laws can handle cases of “peeping drones” but privacy advocates see drones as a novel privacy threat requiring federal regulations. Photo courtesy DJI

Is a Drone Just a Camera? Is airspace private property?

The legal and ethical questions surrounding drone photography can be boiled down to two central themes: Is a drone just like any other camera? Is airspace private property?

When the FAA was formulating its rules for drone operators, a consortium of privacy advocates and experts, led by the Electronic Privacy Information Center (EPIC), argued that drones were not simply an imaging device. Instead, due to their unprecedented ability to track subjects and gather information about them, EPIC contended that drones represent a unique threat to privacy. When the FAA failed to include privacy regulations in Part 107, EPIC filed suit against the agency—a case that is currently in the U.S. Court of Appeals for the D.C. Circuit.

Drone advocates, such as aviation attorney and adjunct professor at Vaughn College of Aeronautics Loretta Alkalay, contend that existing privacy laws (so-called “peeping Tom” laws) are a sufficient safeguard to protect the public from peeping drones. “Stalking is stalking—you don’t need tech-specific laws” to deal with it, Alkalay says. Waite agrees.“A lot of the fear of drone-based peeping Toms is a mistaken belief that our current laws don’t already handle this,” he says. Many drone privacy laws are simply “criminalizing behavior that’s already illegal,” he adds.

For photojournalists using drones, the Society of Professional Journalists’ ethicist Andrew Seaman has some straightforward advice: Think of your drone as you would any other camera, and follow the same rules about photographing subjects in public spaces. “If you would cover [photograph] it with a traditional camera, there’s no ethical consideration against using a drone,” Seaman says. That said, he also advises that journalists start slow and take every opportunity to educate their local community about drones.

Photographers need to be sensitive to people’s concerns about drones and not behave in a manner that’s deliberately provocative, Alkalay says. She suggests reading the voluntary best practices formulated by the FAA and NTIA for respecting privacy when using a drone (available here: http://bit.ly/1XS2HSX), though those guidelines don’t apply to journalists.

Photo courtesy DJI

Some states have declared that critical infrastructure is off-limits to drone photography, despite the fact that photographing infrastructure could very well be in the public interest. Photo courtesy DJI

How High is Private Property?

The second legal and ethical thicket involves property rights and whether (and how far) they extend into the air. “It’s a completely unanswered question whether you’re trespassing when you’re in the air over other people’s yards,” Resnick says. A highly publicized case of a Kentucky man shooting down a Phantom 3 that flew onto his property was settled without addressing the question of whether the drone was trespassing. (Relatedly, the FAA has also declined to press charges against anyone for shooting at drones, despite the agency’s contention that doing so constitutes a felony offense punishable by up to 20 years in prison.)

The FAA considers the entire U.S. airspace as under its jurisdiction “from the tip of a blade of grass skyward,” Alkalay says. But that contention, particularly for airspace below 500 feet, has yet to be debated in a precedent-setting case. “This is literally up in the air—where your privacy starts,” she says. In the absence of a clear precedent, Seaman advises restraint. “If you’re going to encroach on someone’s yard, you have to ask yourself if the images are of enough importance to the public,” he says. “If it’s someone at home, working in their yard, I wouldn’t send a drone up to photograph that. If the police uncover 20 bodies in someone’s backyard, that’s a different story.”

A drones’ ability to fly where a typical camera cannot isn’t simply limited by the moral and ethical sensibilities of the human handling the remote, however. Drone makers like DJI have built in geo-fencing to automatically ground drones before they can enter restricted airspace (such as around airports). While the ostensible purpose of geo-fencing is safety, Waite worries about the potential for private companies or government officials to leverage geo-fences to wall off airspace for less salutary reasons.

“I’m very concerned about the ability of a private company—a foreign-owned company—to determine where drones can and can’t fly,” Waite says.

Resnick says DJI is sensitive to the issue of restrictive geo-fencing. He counters, “The majority of the geo-fences in our system can be unlocked by request. We don’t see geo-fencing as an enforcement tool but as an information tool.” As technology develops, geo-fencing can be made more permissive, Resnick adds. “We used to have hard geo-fences around sports stadiums. Now, we can update them dynamically so they’re only enforced during events.”

Drone Privacy 2.0

While local legislators scurry to craft laws to protect the public from intrusive drones, drone owners themselves can also expect much less anonymity in the future. Last year, Congress asked the FAA to develop a system to identify drones and drone operators by 2018. So far, DJI has proposed a system that would transmit an owner’s data from a drone to a special receiver. “Anyone with the proper receiver could obtain those transmissions from the drone, but only law enforcement officials or aviation regulators would be able to use that registration number to identify the registered owner,” DJI said in a statement. According to DJI, the system would be similar to license plates, which allow anyone to identify a nearby car but which can only be traced to their owner and operator by authorities.

But while the FAA moves to improve drone owner identification, Alkalay doesn’t expect them to codify a federal privacy policy for drone users anytime soon. “There doesn’t seem to be a lot of appetite for new regulations in Washington,” she says.

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