Peter A Clarke

The Atlantic published a story, So This Is How It Begins: Guy Refuses to Stop Drone-Spying on Seattle Woman, regarding  the use of a drone in Seattle by a person to interfere with another’s privacy.

It provides:

Back in October, Alexis wrote a piece asking what rights do we have with regard to the air above our property. Walk onto someone’s lawn and you’re trespassing; fly over it in a helicopter and you’re in the clear — “the air is a public highway,” the Supreme Court declared in 1946. But what about the in-between space? Does the availability of unmanned aerial vehicles (aka drones, aka UAVs) throw a wrench in the old legal understandings?

Well, here’s where the rubber meets the road for this abstract line of questioning. The Capitol Hill Seattle Blog is reporting a complaint it received from a resident in the Miller Park neighborhood. She writes:

This afternoon, a stranger set an aerial drone into flight over my yard and beside my house near Miller Playfield. I initially mistook its noisy buzzing for a weed-whacker on this warm spring day. After several minutes, I looked out my third-story window to see a drone hovering a few feet away. My husband went to talk to the man on the sidewalk outside our home who was operating the drone with a remote control, to ask him to not fly his drone near our home. The man insisted that it is legal for him to fly an aerial drone over our yard and adjacent to our windows. He noted that the drone has a camera, which transmits images he viewed through a set of glasses. He purported to be doing “research”. We are extremely concerned, as he could very easily be a criminal who plans to break into our house or a peeping-tom.

The site adds, “The woman tells us she called police but they decided not to show up when the man left.”

But even given the Supreme Court’s finding that Alexis raised, it’s unclear whether this stranger’s drone-flight — not to mention his photography — was legal under current law. John Villasenor, author of a recent Harvard Journal of Law and Public Policy article about the laws governing drones and privacy, explained to me over email that it’s difficult to analyze the legalities of the case without more information. What kind of drone was it? How was it flown? These questions would be instrumental to determining whether it was operated in accordance with FAA regulations.

As for the privacy concerns, one of the most important questions is what was being photographed. “If the camera on the drone was always aimed at the public street,” Villasenor writes, “then that’s very different than if it was capturing images into the home through the window.”

The First Amendment provides a right to gather information, but that right is not unbounded; it ends, Villasenor writes, “when it crosses into an invasion of privacy.” He continued, “Putting a stepladder up against someone else’s home without permission, climbing up the ladder, and then photographing into a second-floor window would be an invasion of privacy. Using a drone just outside the window to obtain those same photographs would be just as much an invasion of privacy.”

New technologies may present new ways of violating people’s privacy, but that doesn’t mean they’re legal. It will take courts years to figure out how to apply our laws to our age of drones (and years for legislators to revise them — they’re not, after all, perfect), but we’re not starting from scratch. That said, police (or other law-enforcement agents) will need to actually enforce existing laws, or they’re not all that helpful.

It was entirely predictable that this type of situation would arise.  Drones are easily acquired for civilian use.  The technology has advanced to the point where it is cheap to purchase and easy to use.  Drones were designed not just to fly around.  They are designed to carry a payload.  In military use that is commonly a weapons system or advanced camera technology for surveillance and reconnaissance.  In its civilian use mounting a camera, still or video, is simple and effective.

In the USA there are a tort of privacy and this action would probably be a breach of a right to seclusion.  In Australia an individuals’ ability to take action to protect his or her privacy is, at best, limited.  It is unlikely that the Privacy Act 1988 or the Victorian privacy legislation, the Information Privacy Act 2000 and the Health Records Act 2001 would apply.  The Charter of Rights and Responsibilities Act 2006 is of limited use.  The Surveillance Devices Act 1999 may apply but not easily. The relevant provision is section 7(1) which provides:

(1) Subject to subsection (2), a person must not knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity. Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both; In the case of a body corporate, 1200 penalty units. 

The critical question is therefore what is meant by privacy activity.  Private activity is defined as:

private activity means an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves, but does not include- (a) an activity carried on outside a building; or (b) an activity carried on in any circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else;

Given a breach of the Act is a criminal offence the legislation will be construed narrowly and the burden is of beyond reasonable doubt.  As importantly for a person whose privacy has been interfered with the carriage of any action, a prosecution, is the State.  The individual has no action in his or her right.  That includes no ability to seek injunctive relief or sue for damages, a right a citizen should have just as he or she has a right to take action for negligence or a breach of contract.

That the law follows behind the development of technology is such a common phenomanon as to be trite.  But at least it does catch up, albeit slowly.  In the area of privacy the legislative lethargy is chronic and there are few signs that State or Federal Governments are intending upon providing meaningful rights to privacy for individuals.

At common law or equity it is difficult to take action for this sort of interference.  At least comfortably.  There may be elements of nuisance in having a drone fly overhead but not so much if it flys next to a property and moves up and down the boundary line.  It is even more difficult to fashion a claim in trespass.  In the UK the courts hearing misuse of private information cases, grounded in equity and referable to the Human Rights Act 1998, have proven to be quite capable of meeting differing fact situations not usually found in breach of confidence cases.  Whether the Australian courts would be so adaptable in developing such an action following Giller v Procopets, which recognised a claim for breach of confidence involving privacy issues, is a matter that awaits judicial consideration.

A stand alone statutory right to privacy would avoid any need for extending and reworking a claim in equity or developing the tort of nuisance or trespass.  It is by far, the best solution to a growing problem and a clear gap in the law.