Would-be U.S. Supreme Court Justice Louis Brandeis and attorney Samuel Warren laid the groundwork for modern privacy law in 1890 when they published a law review article entitled “The Right to Privacy.”  In the article, Brandeis and Warren bemoaned “recent inventions and business methods” such as “instantaneous photographs and newspaper enterprise” and “any other modern device for rewording or reproducing scenes or sounds” which have “invaded the sacred precincts of private and domestic life.”

To protect individuals from this invasive new technology, Brandeis and Warren articulated a series of legal rules to limit the ability of strangers to gather information about individuals and allow plaintiffs to seek compensation if their privacy had been invaded. Many of the rules they outlined form the basis for privacy torts that are still litigated today.

If “instantaneous photographs” and “newspaper enterprises” worried Brandeis and Warren, what would they make of lightweight drones that could hover above parks, public events and even private homes, gathering high-quality photos, video and audio that could be live-streamed on the Internet?

The Federal Aviation Administration (FAA) plans to propose rules this year that would allow the regulated use of drones for certain commercial purposes, including news and sporting event coverage, commercial photography, aerial mapping and advertising. While the FAA finalizes its proposal, more than 40 state legislatures are considering bills that would regulate drone privacy. Many of these bills would prohibit the use of drones to photograph or record video of private property. And legislation proposed, but not enacted, last year in Missouri would have precluded “journalists, reporters or news organizations” from using drones to “conduct surveillance of any individual or property owned by an individual or business” without the consent of that individual or property owner.

It’s safe to say that Brandeis and Warren probably wouldn’t be enthusiastic about the use of drones to gather images and videos and transmit them via news sites, personal blogs, social media and other forums. But I’m going to go out on a limb and say that they wouldn’t argue for new, drone-specific privacy rules. The common-law privacy torts that Brandeis and Warren articulated more than a century ago would apply equally to drones as they do to older information-gathering technologies.

Among the existing laws that we should all consider when we discuss the use of drones to gather information are:

  • Intrusion Upon Seclusion: According to the Restatement of Torts, “[o]ne who 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.” If a drone was to capture an image, audio or video of individuals in their home, a court may well find that use to be “highly offensive.”
  • Public Disclosure of Private Facts: This tort imposes liability for the publication of private facts about an individual, provided that publication was highly offensive to a reasonable person. In some states, the plaintiff must also show that the facts disclosed were not newsworthy. This tort likely would allow individuals to sue defendants who use drones to capture intimate details of their personal lives. For instance, a plaintiff might be successful with a public disclosure claim if a website operator used a drone to take a picture of the plaintiff showering at home.
  • Trespass: The Restatement of Torts recognizes that flight above another person’s land can constitute trespass if “(a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes substantially with the other’s use and enjoyment of his land.” The Supreme Court has held that flights above the minimal navigable airspace are on a “public highway” and cannot be the basis for a trespass claim. But drones hovering at a closer distance to the land could prompt a successful trespass lawsuit, provided that the landowner demonstrates that the drones interfered with the use and enjoyment of the land.
  • Nuisance: Like trespass, the tort of nuisance protects an individual’s right to use and enjoy land. But a plaintiff may bring a nuisance claim even without a tangible physical invasion. For instance, courts have allowed nuisance claims arising from loud noises, dust and foul odors. Thus, if a drone is hovering near—but not above—a person’s home, that person could bring a nuisance claim.

As lawmakers and regulators consider new drone privacy regulations, they should keep in mind the existing privacy protections that our legal system provides. To be sure, drones will likely create new privacy questions that did not exist during the time of Brandeis and Warren, or even a year ago. But the answers to these questions may exist in the privacy principles that have been fundamental to our legal system for more than a century.

Written By

Jeffrey Kosseff, CIPP/US


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