Laws Protecting Our Privacy From Drones

Drones are used as scapegoats as their visible presence makes our privacy fears manifest

When a Kentucky man shot his neighbor’s drone out of the sky over his house this July, the story hit a nerve. What’s a guy to do when there’s a drone snooping in his backyard, scaring his kids? It seemed every talking head, from Kentucky state representatives to local news anchors to Fox & Friends, had come to a consensus: There oughta be a law.

What are current drone laws?

Drones hover at an uneasy intersection of state laws and FAA regulations, civil claims for nuisance and trespass, and new state legislation. As a criminal procedure scholar, I’m used to considering the ramifications of domestic drone surveillance by the government, but drones manned by nosy neighbors are something else. The question is, do we really need more laws specific to drones?

Media lawyers Michael Berry and Nabiha Syed would argue not. These laws “either fail to meaningfully address any perceived harm or sweep too broadly,” they write.

Worse, the laws seem unnecessary. Much of the discomfort with drones stems from their ability to spy on people. But there already are laws against unwanted photography or recording of private individuals, and these apply whether the camera is mounted to a drone or to a creepy guy in a stained raincoat.

Additionally, some of the new drone-specific laws seem to conflict with what few FAA regulations we have. For example, Oregon has enacted a law enabling people to sue drone operators who fly over their houses at altitudes of less than 400 feet, after being notified that the residents don’t want them there. Only one problem: FAA guidelines state that drones should not be flown at altitudes over 400 feet. That means any drone operator in Oregon – as long as he’s on notice that his activities are unwelcome –will be in violation of something.

Tennessee has amended its definition of trespass to include anyone flying a drone into “that portion of the airspace above the owner’s land not regulated as navigable airspace by the federal aviation administration.” But the FAA says that they regulate every cubic inch of airspace “from the ground up.”

The virtue of drone-specific laws, if any, might simply be an expressive one: We can all agree that we’re not OK with aerial snooping, we pass a law, and everyone feels better. But if we are serious about protecting privacy, maybe our time and political capital could be better spent.