Lawmakers are trying to find a way to cope with privacy issues in the digital age where one man’s recreational drone is another’s peeping Tom.
Lawmakers and special interest groups such as the American Civil Liberties Union (ACLU) and the Drone Pilot’s Association are trying to map a route through a tangled set of competing imperatives, including the government's mandate to protect citizens from terrorists and aid in natural disaster relief, the property rights of drone owners, and the civil and privacy rights of those under surveillance by these new eyes in the sky.
William Meredith shot a drone out of the sky earlier this month near Louisville, Kentucky, after he claims it hovered too long over his teenage daughters who were lounging by the family pool, according to press acounts. After his family alerted him to the situation, Mr. Meredith used his legally-permitted 40 mm Glock to shoot the drone from the sky as it made a second circuit over his property.
Meredith was arrested under a local ordinance that bans the use of firearms within city limits.
Meredith is not the first citizen to contemplate shooting down a private drone. In 2014 Deer Trail, Colo., voters overwhelmingly defeated a proposal that would have authorized the rural community to issue drone-hunting permits which backers told media was a tongue-in-cheek challenge to surveillance programs.
The Meredith case has been further complicated, however, by video shot by the drone’s owner, David Boggs, from the flight data recorder on his iPad. Boggs says the video shows that his drone remained hundreds of feet above Meredith's property and in fact was only just about to cross the property line when Meredith shot it down.
Peter Sachs, attorney, founder of the Drone Pilot’s Association and writer of the “Drone Law Journal,” supports Boggs's contention.
“I have seen the video and telemetry,” he says in an interview. “The story as being reported continuously in the media is completely untrue because the telemetry of the drone – the black box if you want – shows that the man who shot the drone out of the sky is lying completely.”
According to Sachs, Boggs and his drone were well within their rights.
“Clearly, the First Amendment guarantee applies there. If he wants to hover over this gentleman’s property and he has the right to do just that,” says Sachs. “I would agree with the ACLU if this were something done with malice. It could be considered harassment or under the peeping Tom statutes,” says Mr. Sachs. “It doesn’t appear to be a trespass in Kentucky, but you would have to check with a specific Kentucky attorney, but it’s not a civil trespass.”
Rep. Ted Poe (R) of Texas believes that it is precisely this kind of confusion over legalities that points to a need for Congress to revisit his proposed legislation, 2013's Preserving American Privacy Act.
This legislation was part of the discussion at a hearing held by the House Judiciary Committee's Subcommittee on Crime, Terrorism, Homeland Security, and Investigations which opened with testimony from the ACLU.
The ACLU continues to support Rep. Poe’s initiative which they say is "is a strong first step in this effort. The bipartisan bill would ensure that government's – particularly law enforcement's – use of drones will not violate the Constitution.”
“The issue is still the same. It hasn’t moved out of Judiciary Committee. I don’t know why. It needs to,” says Congressman Poe says in an interview. “It all starts with the fact that with our system now the FAA sets the rules. We need to remove the FAA from that decision process because the Congress needs to set down guidelines.”
Poe adds, “When it comes to surveillance, you need a search warrant. The Fourth Amendment right to privacy applies to government use of drones. We need to have Congress set the guidelines and expectations of privacy.”
When it comes to private use of drones Poe says, “There are obviously good uses for drones. Oil companies use them to go up and down the lines looking for leaks in pipelines.”
“But, when it comes to use for surveillance by other citizens there needs to be a rule,” Poe says. “There is no federal law that protects the individual in cases such as the one in Kentucky.”
While there are peeping-Tom and stalking laws which carry a criminal penalty, Poe, a former judge, says he advocates for civil penalties with his legislation.
“The expectation of privacy, once again, is that people cannot use a drone over your property, an individual’s property, without their permission. That’s the rule we set in our legislation” Poe clarifies. “Sure there are exceptions to that but the general rule is you can’t fly a drone over your neighbor’s property and take photographs or not take photographs of the kids at the pool. It’s a violation of a person’s expectation of privacy.”
Drones serve two governmental purposes, says Chad Marlow, Advocacy and Policy Counsel for the ACLU: life-saving/emergency response and law enforcement/investigative. But “In cases of protests or religious activities of a person going to a church, temple or mosque," says Marlow "it is not appropriate for the government to use [drones] because it would have a chilling effect on the practice of free speech or free religion.”
However, the ACLU supports the use of drones by government agencies in cases of disasters, fires, and other instances where they are used for life-saving purposes, says Marlow.
When it comes to the personal use of drones, Marlow gives the examples of “a documentary film-maker or news organization who wants to show something newsworthy or investigative report gathering evidence on a business practice they want to bring to light, we don’t want laws in place that keep people from putting a camera on a drone to engage in evidence collection.”
Marlow concludes, “Right now, the correct approach is to call the authorities and file a report, not shoot it out of the sky. If someone was in a tree taking photos should [Meredith] have shot him?”
Poe concludes, “I have long said that Congress needs to act, it cannot wait for judges to determine whether this is a Fourth Amendment violation of the expectation of privacy or not.”
“Now we’re in that situation in Kentucky where we don’t know, because there are no guidelines,” Poe says. “There are no rules. This is just one of the issues we’re trying to expand of privacy in the digital age.”