Drones, also known as Un- manned Aerial Vehicles (UAVs) or Unmanned Aer- ial Systems (UAS), can be
equipped with cameras, thermal scanners, license plate readers and facial-recognition software. Able to accomplish
feats that manned aircraft and even traditional remote-controlled airplanes cannot; they can get within close proximity
of a person or property, unnoticed, and
take audio-video recordings and photographs. They can also provide streaming
video to an audience over a small personal device like a smartphone. Given their
technology and capabilities, drones allow
for new forms of privacy invasion.
Drones have become increasingly popu-
lar as the technology has advanced and
prices have gone down. The Federal Avia-
tion Administration (FAA) estimated that
at least 1.6 million drones were sold in 2015.
Commercial and private aircraft flying legally over private property in the
navigable airspace established by the FAA
have always enjoyed freedom from claims
of invasion of privacy.
However, drones can operate in extremely confined spaces at low altitudes,
and the FAA has limited their recreational use to an altitude below 400 feet.
Drones flying over a person or backyard
would be lower than 400 feet, creating
conditions for a forthcoming storm of
invasion-of-privacy claims arising out of
1. Intrusion upon seclusion
There are two forms of common law invasion of privacy: Intrusion upon seclusion
and publication of private facts. A leading treatise defines intrusion upon seclusion as a tort in which one “intentionally
intrudes, physically or otherwise, upon
the solitude or seclusion of another or
his private affairs or concerns, is subject
to liability to the other for invasion of his
privacy, if the intrusion would be highly
offensive to a reasonable person.” Intrusion upon seclusion must be intentional;
there is no such tort as negligent intrusion upon seclusion.
Intrusion on seclusion means intrusion
into a private space; observation of a person in public generally does not amount to
liability for intrusion upon seclusion. For
example, using a drone to hover outside
someone’s home while using the drone’s
mounted camera to peer into a window
without that person’s permission could
subject the drone operator to liability for
common-law intrusion upon seclusion.
2. Publication of private facts
The second form of common-law invasion of privacy is publication of private
facts. The elements of this tort are: (1) the
publication, (2) of private facts, ( 3) that are
offensive, and ( 4) are of no public concern.
The tort addresses the public dissemination of private information rather than
the mere gathering of the information
itself. Accordingly, a person who gathers
the private information, but then does not
publicly disseminate it, is not liable for this
tort. Disseminating the private facts presupposes intent by the actor.
States have started passing
privacy laws directed at drones
Many states have passed laws directed at
drones in light of growing invasion-of-privacy concerns. States such as Florida,
Idaho, North Carolina, Oregon, Tennessee, and Texas, have passed laws that address the use of drones by private parties.
For instance, Florida’s “Freedom from Unwarranted Surveillance Act” prohibits the
use of a drone “to record an image of privately owned real property or of the owner, tenant, occupant, invitee or licensee of
I See You
DRONES, PRIVACY TORTS AND
By Ryan K. Hilton and James Michael Shaw, Jr.