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Unmanned Drones and the Right to Privacy

On Thursday, February 14, 2013, Attorney Jay Wolman of Raymond Law Group will appear on Fox 25 Boston News at 10 p.m., discussing drone technology and privacy law. Attorney Wolman and reporter Ted Daniel sat down to discuss the rights of Massachusetts citizens. Although Peeping Tom of legend spied on Lady Godiva from the confines of his house, now there is a greater threat of someone, or something, outside looking in. By way of example, the Parrot A.R. App-Controlled Quadricopter (http://ardrone2.parrot.com/usa/ ) is a small, remote controlled aircraft that works with smartphones and tablets through wi-fi. It is capable of taking still photographs and recording 720p HD video. These drones have many positive uses, such as recording images for real estate sales, providing security, aerial mapping, and furthering art. But they are also intrusive on personal space and privacy.

The drone is a combination of existing technologies: remote controlled aircraft and digital photography/video. Primary concern is whether someone could fly a drone up to a window and spy on occupants. Whether or not an activity is lawful depends on the use and how the law already deals with these technologies independently.

First, there is the issue of the aircraft itself. Massachusetts has a criminal trespass statute, G.L. c. 266, sec. 120. It prohibits the entry of land if a person has previously been forbidden to do so by notice, e.g. a No Trespassing sign. It is a misdemeanor carrying a $100 fine and up to 30 day prison term. However, the Massachusetts Court of Appeals held that the law only spoke of entry upon land, not airspace. See, Commonwealth v. Santos 58 Mass. App. Ct. 701 (2003) (laborer in a bucket briefly traversed the air over the property of another). Further, the law requires specific notice. Since most people do not post No Trespassing signs, and posting near all access points for an aircraft will be difficult, even if the law covered airspace it would be difficult to rely upon. An arrest for criminal trespass is thus unlikely.

However, even if the police cannot prevent an aircraft from entering one's airspace, Massachusetts residents may be able to sue those individuals who have or may enter the airspace without permission. Smith v. New England Aircraft Co., 270 Mass. 511 (1930)(low flying aircraft a trespass). At common law, the principle of "Cujus est solum, ejus est usque ad coelom et ad infernos" ("he who owns the soil owns upward unto heaven and downward to hell") governed. Landowners also owned their airspace. Renters should take particular caution because they might only rent a dwelling, and not the land and airspace around the dwelling.

The common law rule was limited in United States v. Causby 328 U.S. 256 (1946), where the U.S. Supreme Court found that the rights only extended one's the usable airspace, in order to promote air travel, and not the heights at which aircraft typically travel. The amount of useable airspace was revisited in Florida v. Riley, 488 U.S. 445 (1989), a case involving a warrantless search. There is an overlap between Fourth Amendment cases and trespass because the police are generally permitted to occupy any space an ordinary member of the public may occupy. A warrant is needed only where the police desire to enter and search areas otherwise off limits. In the context of whether or not a warrantless search was unreasonable, the Supreme Court found a helicopter at 400 feet looking down did not invade privacy as air traffic could occupy that space. It may take a Supreme Court decision again to determine how high up air rights extend. This question will likely be analyzed in the context of "curtilage", the area immediately surrounding one's house. In United States v. Dunn (1987), the Court held that "curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." Thus, the more an area is fenced in, the greater one's expectation of privacy.

Second, there is the issue of unwanted photography and voyeurism. Massachusetts has an electronic surveillance act that prohibits secret photography, video, or electronic recording of others. G.L. c. 272 sec. 105. It carries a $5,000 fine and 2 ½ year prison term. However, this only applies where the subject is nude or partially nude. Spying on other activities, embarrassing or confidential, is not made unlawful. Massachusetts also has a statute prohibiting disturbance of the peace, carrying a fine of up to $200 and a 6 month prison term. G.L. c. 272, sec. 53. In Commonwealth v. LePore, 40 Mass. App. Ct. 543 (1996), review denied 423 Mass. 1104, the Court of Appeals found that an activity that may cause alarm to a person peered at creates a breach in the public peace. See also, Comm. v. Cahill, 446 Mass. 778 (2006) (citing LePore approvingly). However, these laws may be challenged if the activity is performed by drone, even with a person at the command, rather than a person directly peering.

These drones will certainly be further developed and modified. If audio recording capability is added and used, Massachusetts prohibits such recording without consent. See, G.L. c. 272, sec. 99. Use for corporate espionage may violate federal law under the Economic Espionage Act of 1996, 18 U.S.C. sec. 1831.

Civilly, Massachusetts provides a statutory right to privacy and a violator can be sued for taking such photos and videos. G.L. c. 214, sec. 1B. Again, it is limited to where you have a reasonable expectation of privacy. See Nelson v. Salem State College, 446 Mass. 525 (2006) (a photo in an office, in front of large window, on government property, was not an invasion of privacy). Massachusetts residents also have a right to publicity, that is, they can restrict commercial use of their image, once it has been taken. G.L. c. 214, sec. 3A.

Finally, those operating drones should also be mindful of unintended consequences. Depending on how video or stills are used, they may be collecting data about a person bringing them within the ambit of G.L. c. 93H, the data privacy law. That law is very broad; once a person starts collecting covered data (e.g., images of credit cards and bills on a kitchen table), which may well be within the photos or videos, they may have an obligation to secure it.

As technology continues to develop, the courts will continue to face challenges applying existing law to these technologies and their uses, and the legislature will need to update the law and predict developments to ensure everyone knows their rights and obligations.

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