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Document Type

Article

Abstract

A few years ago one might have seen a small object flying overhead without any idea what it could be. Today, it is fairly commonplace to see drones flying around our neighborhood skies. The Federal Aviation Administration (FAA) predicts there will be seven million drones populating our skies by 2020. In 2015 hobbyists, recreational users, and commercial businesses purchased unmanned aerial vehicles, commonly referred to as drones, in record-breaking numbers. Estimates reveal that over 4.3 million drones were sold worldwide in 2015. Trade industry experts predicted that more than 2.8 million drones would be sold in the U.S. in 2016 and 4.8 million in 2017. The surge in drone sales means more drones in the sky. The FAA estimates that by the end of this decade 30,000 drones will occupy our skies.

The privacy concerns relating to drones stem from their capabilities. These aerial observers enable operators to gather information about people and places via cameras, live videostreaming capability, and sensory-enhancing technologies that can be mounted to the drone. Once collected, information can be stored forever and broadly disseminated electronically. Moreover, the drones’ aerial positioning makes it difficult for anyone without prior notice to avoid being caught on their cameras. The FAA’s mandate to integrate unmanned aircraft into U.S. airspace focuses on safety, not privacy.

The sheer volume of drones in our skies makes accidents inevitable. At alarming rates, pilots of passenger jets are reporting drones flying near airports, flying in restricted airspace, and interfering with the flight paths of commercial airliners, especially during take-off and landing. There have been reports of drones malfunctioning and falling from the sky, causing injury and damage to people and property. The insurance industry is beginning to respond to this new market as the number of manufacturers, commercial operators, and homeowners seeking to protect themselves from risk and liability grows.

If laws do not provide legal redress for those negatively impacted by drone operations, then people will assuredly take matters into their own hands. In some instances where the law is perceived as a fairly blunt tool, people will increasingly resort to self-help remedies. Not only are these measures dangerous, but many will result in criminal prosecutions and civil suits over damaged property. This article sets out to answer these questions at a time when lawmakers are feverishly proposing drone specific legislation. Presently, forty-nine states have considered legislation seeking to regulate drones. Thirty-one states have passed laws that limit the use of drones. The majority of these laws provide for civil penalties and causes of action for capturing images and recordings of individuals via drone without consent. Before the ink dries on these newly minted bills and incidents ripen into lawsuits, we should be asking whether our long-standing common law torts offer remedies of equal or greater value than these rapidly developing new laws. To the extent that common law torts fall short of providing adequate remedies at law, understanding their shortcomings will strengthen future drone legislation.

Part I of this article explains the FAA’s current and proposed rules for drone operators in the wake of the massive popularity of drones Part II describes the capabilities of unmanned aircraft to help understand the growing concern over privacy intrusions. Part III examines the legislative activity among states seeking to limit drone use as a means of protecting privacy. Part IV explains the application of the torts of trespass, nuisance, and invasion of privacy to drones, and those claims’ limitations. Part V suggests that state and local governments can implement regulations for low altitude airspace that are designed to safeguard privacy and not conflict with current FAA rules.

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