Lentis/Amateurs with Drones

Background

Amateur Drones On the Market

A small quadcopter.

Amateur drones, also known as unmanned aerial vehicles (UAV), are the nonmilitary commercial drones used by drone amateurs.

There are many amateur drones on the market, ranging from tens to thousands of dollars depending on the available features.

Drone Uses

Amateur drones have various applications besides traditional photographing and visual tracking. Police and fire departments apply the designed drones for rescue and search missions due to drones' vast working ranges and fast speed. Farmers also use the amateur drones for self irrigating. Companies such as Amazon and UPS have been investigating drone usage for product delivery. Amateur drones are also used in films shooting and racing.

Drone Incidents

On July 26th 2015, William Meredith shot down a Phantom 3 hobbyist drone hovering over the backyard of his Louisville, Kentucky home. His 16-year-old daughter had been out in the pool when the drone passed by, calling it "creepy and weird." When questioned, Meredith claimed that the drone violated his expectation of privacy, and that flying the drone above his property constituted trespassing. Local police arrested Meredith and charged him with criminal mischief and wanton endangerment for firing a gun within city limits. However, Kentucky judge Rebecca Ward ruled that the drone violated Meredith's right to privacy when it passed over his backyard and cleared him of all charges. The drone owner, David Boggs, is pursuing further legal action, hoping to resolve “the boundaries of the airspace surrounding real property, the reasonable expectation of privacy as viewed from the air, and the right to damage or destroy an aircraft in flight.”

Shortly after being cleared of charges, Meredith branded himself "the drone slayer" and began selling anti-drone merchandise online. Other companies followed suit: munitions company Snake River Shooting Products began marketing anti-drone shotgun shells with the stated purpose of "defending against drone-based privacy concerns and terror."

Somewhat similar incidents have occurred in New Jersey and California. In 2014, Russell Percenti shot down a drone that was taking aerial photographs of a New Jersey house nearby his own, claiming he was defending his family's privacy. Percenti pleaded guilty to criminal mischief and received a probationary sentence. That same year, Eric Joe won $850 from a Stanislaus County small claims court after his drone was shot down by his parents' neighbor during a recreational flight over their house. However, the Meredith incident marks the first publicized hobbyist drone lawsuit in which the state courts have sided against the drone owner, raising questions regarding the extent of privacy rights and regulatory inconsistencies.

Current Regulations

The most recent set of rules from the Federal Aviation Administration (FAA) regarding drone usage were released on August 29, 2016. Below are some key regulations.

• All drones heavier than 0.55 lbs must be registered with the FAA.
• Max weight 55 lbs.
• Line of sight must be maintained by the pilot when flying.
• Flying is only permitted during the daytime.
• Flying overhead anyone without their permission is not permitted.
• Max speed of 100 mph.
• Max altitude of 400 ft.
• No careless or reckless operations.

In addition to these regulations, no fly zones exist anywhere within 5 miles of an airport, around national parks, and around the Washington D.C. area. There are no regulations on who can fly a drone, unless you are using it for profit, in which case certification is required.

How drones can be used around neighborhoods without violating the privacy and property rights of homeowners is not well defined. The exact altitude where public airspace begins is unclear, but since the introduction of the airplane in the mid 1900s the start of public airspace has been at most 500 ft. Drones are limited to 400 ft so they can't reach the airspace of planes, making their legal airspace unclear, they can still however be used in public parks and fields.

Social Participants

FAA

The FAA develop airspace regulations and are the most important agency in regulating drones. In early 2015, after a drone crash landed on the White House lawn, President Obama stated regarding drones "we don't really have any regulatory structure at all". In 2016 the FAA released a new set of drone regulations and the app "B4UFLY", which informs the user of nearby no-fly zones. The FAA continue to clarify rules and regulations regarding drone usage.

Police

Drones can be used for surveillance, search and rescue missions, and apprehending criminals. A similar technology was used by Dallas police in July of 2016 when explosives were attached to a remote controlled robot and maneuvered to take out a dangerous gunman. Police are major adopters of new technology, such as thermal imaging and robots, and would benefit from having drones.

Amateur Drone Organizations

There are many associations of civic commercial UAV operators in the United States including UAVUS and UAVSA. Their members are diverse drone hobbyists supporting amateur drones and the freedom to fly safely under regulations. They give instruction and create public relations for drone communication. In December 2015, after FAA announced its new small UAS registration rules, UAVUS CEO and President Bob Gonsalves was concerned that the FAA's rush to implement small UAS registration bypassed crucial checks like the Administrative Procedures Act and Offices of Management and Budget. The drone registry may cause a significant break between the model aircraft community and government regulators.

Filmmakers

In 2014, the FAA began to grant regulatory exemptions to complying aerial production companies to put cameras on drones for use in filmmaking. However, filmmakers continue to seek looser regulations, complaining that restrictions limiting weight and forbidding nighttime shooting are preventing them from making full use of the drone technology. Aerial Director of Photography Dylan Goss contends that they could greatly expand operations even with slightly reduced regulations, pointing out that dusk and sunset are "moments when people like to shoot."

Technology Companies

Technology companies may view drone regulations as stifling technological innovation. Amazon, who had previously pitched incorporating drones into product delivery services, has threatened to take drone research and development overseas if the FAA regulations did not allow desired operations. Many smaller startups have already looked overseas for opportunities. In October 2016, Rwanda Minister of Information and Communication Technology Jean Philbert Nsengimana announced a partnership with U.S. startup Zipline to bring drone technology to Rwanda for use in autonomous medical deliveries. Rwanda law is considerably more relaxed on drone regulation than United States law, notably lacking the FAA's line-of-sight requirement that prohibits Zipline's desired operations.

TechFreedom

TechFreedom is a technology advocacy organization that fights regulatory overreach. In February 2016, TechFreedom sued the FAA to overturn the agency’s recently adopted “interim” drone regulations, which require that drones that weigh over 250 grams be registered for a $5 fee. Berin Szoka, President of TechFreedom said that not allowing the relevant industry stakeholders sufficient time to examine a new program could be significantly detrimental to innovation.

Expectation of Privacy

The drone debate highlights how technological innovation challenges existing notions of freedom, privacy, and trespass. The concept of a "reasonable expectation of privacy" neatly summarizes this question. A "reasonable expectation of privacy" is a legal determination of where and in what activities does a person have a legal right to privacy. However, this expectation must also be "reasonable," indicating it is malleable - it can and will change with societal expectations.

Origins in Common Law

Before the invention of aircraft, privacy rights in regards to personal property deferred to common law, following the doctrine of cujus est solum ejus usque ad coelom - “whoever owns the soil, it is theirs up to Heaven.” This notion was challenged in Causby v. United States, where a North Carolina farmer claimed that the noise of U.S. military aircraft flying at low altitude above his property stressed out his chickens, causing them to suicide by flying panicked into walls. The case went to the Supreme Court, which ruled that the old ad coelom doctrine had been invalidated by modern aviation technology. Writing for the majority, Justice William Douglas noted the need to strike a balance between public and private use of airspace, contending both that "the air is a public highway" and that landowners "must have exclusive control of the immediate reaches of the enveloping atmosphere" to fully make use of their private property.

Changes Over Time

In the landmark 1967 case Katz v. United States, Justice Harlan established the "expectation of privacy test;" namely, that society must recognize an individual's claim to a reasonable expectation of privacy as legitimate.

The subjectivity of this test leaves the expectation of privacy open to change. Namely, successive court cases evidenced shifts in the limitations of expected privacy and airspace usage. In the 1989 case Florida v. Riley, police flew a helicopter in public airspace over Riley's house and recorded images of marijuana growing in a greenhouse through a hole in the roof. Because the images were taken from public airspace and Riley's roof was not covered properly, the court ruled that he did not have a reasonable expectation of privacy. Though the line of sight to the marijuana was through Riley's personal airspace, the vantage point of the recording was in public space; in effect, it was as if the police officer had been standing in the street and saw the marijuana plants through an open window. Similar implications could hold for drones if allowed to fly in uncontrolled airspace. However, to what extent these implications hold is unclear: drones are small, cheap, quiet, and can fly almost anywhere including inside buildings. Drones change the nature of aerial surveillance itself, blurring traditional legal boundaries delineating what is public and what is private.

Public availability of technology has also redefined the expectation of privacy. In the 2001 case of Kyllo v. United States, police detected marijuana plants growing in Kyllo's house using thermal imaging technology. The Supreme Court ruled that, because thermal imaging technology was not publicly available, Kyllo had a reasonable expectation of privacy and the use of the technology constituted a warrantless search. However, in the earlier case Dow Chemical Company v. United States, the Court ruled that an unannounced aerial inspection using publicly available tools was constitutional as the pictures taken were from "an 'open field' in which an individual may not legitimately demand privacy."

First vs. Fourth Amendment Rights

The Dow decision established the public availability of technology as a factor in determining a search or seizure to be unreasonable. Because of this, Professor Stephen Henderson contends that, if drone flying was protected under the First Amendment law enforcement could use drone technology to make reasonable searches and seizures under the Fourth Amendment. His argument utilizes the expectation of privacy concept: if drones were regulated such that it would be considered reasonable to fly a drone over someone's private property in private airspace for a limited amount of time, then it would be a reasonable expectation of privacy for a law enforcement official to do the same without a warrant. Henderson argues that it is difficult to contend that law enforcement should not be allowed to engage in activities routinely performed by private persons.

Future Work

This chapter explored the interaction between drones and privacy. Drones have significantly challenged privacy expectations, sometimes causing violent reactions, and causing the FAA to enact stricter rules. Privacy is a concept that evolves with technology, as was shown with the invention of the airplane, and drone development itself may influence expectations of privacy. Future work could explore other reasons for drone resistance, for example public security and fear of terrorism. Other work could explore how drone usage in the military affects public opinion, and the difference between drone development in countries besides the United States.