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.
Greg McNeal, associate professor of law, has received $165,000 from the Carthage Foundation to research the U.S. practice of targeted killings. The research and resulting book will educate policymakers and the public about America’s use of lethal force against suspected terrorists.
Professor McNeal’s research is grounded in the idea that when the United States government kills people on traditional and non-traditional battlefields, bureaucrats play a key role in the killings yet have little visibility into the analytical processes that precede their final decisions. The book will be based on archival and field research and will explain, examine, and offer recommendations for enhancing the success, accountability, and effectiveness of U.S. policies conducted pursuant to America’s new way of warfare.
The research builds upon previous work conducted by Professor McNeal for his article “Targeted Killings and Accountability,” which was featured in the Georgetown Law Journal and won the 2013 Article of the Year award from the American National Section of the International Association of Penal Law. Professor McNeal also recently appeared on MSNBC to discuss the FAA’s selection of civilian drone testing sites in nine states.
Professor McNeal is an expert in international security with an active scholarly agenda focused on national security, warfare, surveillance, and new technologies. Since arriving at Pepperdine, he has twice been called upon to testify before Congress on matters related to national security and frequently consults with elected officials regarding proposed legislation. He recently consulted with and contributed to the development of two U.S. military field manuals aimed at preventing harm to civilians in conflict. He teaches criminal law, criminal procedure, and courses related to national security law and international affairs.
From the Pepperdine University news story:
Professor Gregory S. McNeal and eight other experts in national security, technology, and privacy recently attended a series of unprecedented briefings at the headquarters of the National Security Agency in Fort Meade, Md. The briefers included the most senior leaders, technicians, and lawyers in the NSA. During the briefings, participants discussed the law and policy of intelligence gathering, signals intelligence history and process, cybersecurity, the NSA’s relationship with Congress, and the impact of recent media leaks on the NSA. The briefings were off the record, which allowed for a frank and candid discussion about the agency and its tactics. The NSA is one of the world’s most secret intelligence gathering organizations, responsible for conducting electronic surveillance, cryptology, and cyber warfare. Its core missions are to protect U.S. national security systems and to produce foreign signals intelligence information.
I’ll be discussing targeted killings, drone strikes and drone warfare on Friday, April 26th in Las Vegas, NV. In the talk I will describe the legal justification for the U.S. practice of targeted killings and the bureaucratic and political approval process for conducting strikes. I will also touch on the controversies associated with targeted killings, including matters such as collateral damage, blowback, and transparency. The talk is based on an article “Kill Lists and Accountability” forthcoming in the Georgetown Law Journal, a draft of which can be downloaded for free at http://bit.ly/KillLists.
The Las Vegas Sun is carrying details and booking information CLE will also be available.
Today I appeared on Huffington Post Live on a panel discussing rules for the use of drones in targeted killings. The panel information and video clip appear below.
In anticipation of the election, the Obama administration started working to codify drone policies. Why did they wait so long and what might the rules look like? Originally aired on November 27, 2012
- Josh Hersh (Washington, DC) HuffPost Foreign Policy Correspondent @joshuahersh
- Hina Shamsi (New York, NY) Director of the National Security Project at the American Civil Liberties Union. @hinashamsi
- Gregory S. McNeal (Malibu) Professor, Pepperdine University @gregorymcneal
On Tuesday, April 3, 2012 I will be participating in a debate at The University of Houston Law Center. I’ve posted details from the flyer below.