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Drones and Privacy

Combat attack drone
combat drone isolated on white background

The use of drones could be innocent, or for nefarious reasons. They could be something as simple as taking aerial photos of a sunset over the beach, and the not so innocent use of this kind of high-tech device could be used to snoop on someone inside of their house. Attorney Michael Ehline is intrigued with the issues the use of drones brings to mind and the legal complications.

The unmanned aerial craft was used by government agencies and the military, to fight terrorism and to conduct domestic surveillance for years. Now, this could change, with private companies like Amazon seeking FAA approval for their “Prime Air” program that made the recent news. The Amazon website claims the use of these aerial devices would be used to deliver online merchandise, comparing it with pizza delivery.

Private citizens are not left out of the equation, with some being intrigued and others who have been hobbyists of this kind of technology. One of these people are Santa Barbara resident Cliff Baldridge, who is a tech-savvy aficionado and everything Google expert. He has used radio controlled vehicles for approximately three decades and uses the aircraft for good.

Mr. Baldridege believes he is an expert and uses drones to capture aerial footage of Santa Barbara vistas and then posts them on his Santa Barbara Arts TV page on YouTube. The pictures are taken with an AR Drone 2.0, which he has modified to hold a GO Pro HD camera and using the modified technology enable Mr. Baldridge to have access to stunning images and video he said. He also said that without the utilization of the drone he would never be able to capture these images.

Personal injury lawyer Michael Ehline, who writes a legal blog said Mr. Baldridge must be careful how he uses drones and the film. The legal professional stated that there could be two legal issues with the use of these aircraft, the right to privacy and the FAA. Mr. Ehline said that even if all of the FAA licensing rules are followed, the penal code is another issue and that will include the reasonable expectation of privacy.

Recording in public places under California law is permitted unless the reasonable expectation of privacy gets violated. An example would be people at the beach who are not aware they are on tape would be a violation of the law, while at the same time videoing a police officer making an arrest is legal.

This type of technology gives Mr. Ehline pause since he believes it is possible shortly that legislators and judges will agree with the use of government drone use. But of course, they will restrict private citizen’s use of the aircraft. He said that it would not be unforeseen for law enforcement to argue they have the right to use drones to record, but at the same time take that ability out of the hands of the ordinary citizen. Mr. Ehline adds that in California the stance taken by the courts is a pro-government position.

District Attorney Joyce Dudley and a Santa Barbara representative made a statement for the News-Press that to their knowledge the use of drones is not being used. Mr. Ehline still sees the use of these aerial vehicles could quickly become an invasion of privacy and said law enforcement should be held accountable and went on to say how nice it would be to have a drone capture a police stop recording the incident.

He cited the case of Rialto, where police misconduct was reduced by 80 percent when police officers were systematically recorded on the job. In this situation, the officers carried cameras that were recording their actions and with drones it could keep less than admirable officers acting within the law. The other issue is that it could provide the government with a of using surveillance without a warrant. Even the drones planned to be used by Amazon could be tapped into and companies like Amazon, who are attempting to get approval for enhanced business opportunities could decide to go along with requests by the government for drone information to gain that support.

The current private drone use regulations include:

  • Flying below 400 feet.

Mr. Baldridge said that the guidelines for recreational and hobbyists are outlined in 1981 circular and state that model aircraft should be operated in areas that have a “sufficient distance from populated areas” and says the craft should not be flown above 400 feet.

  • Keep the aircraft in sight.

The owner is required to keep their drone in sight to avoid endangering others and to avoid charges of recklessness.

  • Privacy.

Mr. Baldridge said that there is a general expectation of privacy in public and he has not heard of any cases in Santa Barbara where people are concerned about their privacy. He said that when this craft is over 50 feet in the air, it is as high as a palm tree, filming public scenery and landscape, rather than being low enough to look in someone’s windows that could violate privacy.

According to District Attorney Dudley, she does not know of any current lawsuits of private done use.
The FAA is working to establish rules to include drone use in national airspace, which is going slowly and the agency has reported being behind schedule in developing standards and will not meet a September 2015 deadline. Transportation Department Inspector General, Calvin Scovel III stated the deadline would not be met at a House Transportation aviation subcommittee in February.

The California Assembly has drone-related legislation pending, AB 2306 is scheduled to be heard by the committee Tuesday, after being introduced last month. The proposed bill reads, that it is the intent of the Legislature to establish legislation to prohibit the use of unmanned aircraft systems to invade a person’s privacy.

Senator Dianne Feinstein, the chairwoman of the Senate Intelligence Committee, spoke out about a personal incident with a drone that has made her question her backing of the NSA surveillance program in the past about personal privacy. Sen. Feinstein said on 60 Minutes that she was in her home and there was a demonstration outside, when she went to look out the window there was a drone outside the window.

She said this made her question what benefit there was to society to have drone use and when is it considered stalking or invade privacy. She wondered how close to a home is a drone permitted to be. The legal part of drone regulation remains to be discovered and what will the California legislation consider an invasion of privacy.

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