California legislators are looking to tackle the perceived problem of drone trespasses with a modified version of a bill that was introduced earlier this year. Unfortunately they’ve gone too far in the most recent version of the proposed legislation.
This bill was originally a privacy bill, and it was innovative when it was first introduced. Because it was originally very narrowly tailored and focused on prohibiting trespasses in circumstances where a drone operator was violating a landowner’s expectation of privacy, it struck an appropriate balance between innovation and rights. The bill was narrow and careful in that it required plaintiffs to prove a series of elements to make their case. Requiring multiple elements of proof is important as it protects rights and guards against frivolous litigation.
Here is some of the original language from the preamble of the legislation when it was proposed earlier this year:
Existing law imposes liability for physical invasion of privacy, if a person knowingly enters onto the land of another without permission or otherwise commits a trespass in order to capture any image or recording of the plaintiff engaging in a private activity and the invasion is offensive to a reasonable person. (my emphasis in bold)
The key here is that the original bill created a cause of action only when someone was trespassing for a very specific purpose — to violate one’s privacy. The bill did this by modifying California’s existing physical invasion of privacy law. If the bill had stayed as proposed, to prove a violation would require a plaintiff to prove not only that the drone entered the airspace above a person’s property without their permission, but also all of the following things:
- The operator knowingly violated the landowner’s rights, and
- The operator captured any type of visual image, sound recording, or other physical impression of the plaintiff, and
- That image or recording of the plaintiff showed them “engaging in a private, personal, or familial activity”, and
- The invasion of privacy was “in a manner that is offensive to a reasonable person.”
That’s a pretty sensible approach focused on privacy harms. All four elements have to be proven, which means we won’t see spurious or vexatious litigation because the bar to litigation is high enough that someone isn’t going to sue unless their privacy was truly violated. It also serves to protect First Amendment rights because it is narrowly tailored to address privacy harms, rather than being a broad ban on aerial imaging or the mere act of flying.
I will be presenting my paper “Surveillance and the City” at the 3rd Annual Local Government Law Works-In-Progress Workshop at the University of Denver, Sturm College of Law.
Read more for the paper abstract: (more…)
The downloads continue as “Reforming the Foreign Intelligence Surveillance Court” is now listed on 7 top download lists. Again, it’s not a big deal, but it is nice to see that my essay Reforming the Foreign Intelligence Surveillance Court’s Interpretive Secrecy Problem is reaching different audiences, finding its way onto seven different top ten lists:
While it’s not a big deal, it’s nice to see that my paper Drones and Aerial Surveillance: Considerations for Legislators has been receiving quite a bit of attention from different audiences, making it onto multiple SSRN Top Ten lists. Here they are:
Here is the paper abstract:
The looming prospect of expanded use of unmanned aerial vehicles, colloquially known as drones, has raised understandable concerns for lawmakers. Those concerns have led some to call for legislation mandating that nearly all uses of drones be prohibited unless the government has first obtained a warrant. Privacy advocates have mounted a lobbying campaign that has succeeded in convincing thirteen states to enact laws regulating the use of drones by law enforcement, with eleven of those thirteen states requiring a warrant before the government may use a drone. The campaigns mounted by privacy advocates oftentimes make a compelling case about the threat of pervasive surveillance, but the legislation is rarely tailored in such a way to prevent the harm that advocates fear. In fact, in every state where legislation was passed, the new laws are focused on the technology (drones) not the harm (pervasive surveillance). In many cases, this technology-centric approach creates perverse results, allowing the use of extremely sophisticated pervasive surveillance technologies from manned aircraft, while disallowing benign uses of drones for mundane tasks like accident and crime scene documentation, or monitoring of industrial pollution and other environmental harms. Legislators should reject a warrant-based, technology-centric approach as it is unworkable and counterproductive. Instead, legislators should follow a property rights-centric approach, coupled with limits on persistent surveillance, data retention procedures, transparency and accountability measures and a recognition of the possibility that technology may make unmanned aerial surveillance more protective of privacy than manned surveillance.