When most Americans think of drones, they think of unmanned, often weaponized aircraft that are used by governments in areas of conflict for intelligence or combat purposes. However, the proverbial sky is the limit on the potential commercial use of drones. For example, in a December 2013 60 Minutes interview, Jeff Bezos, the founder of Amazon.com, described his company’s efforts to develop GPS-programmed, autonomous drones (or in his words, “octocopters”) to serve as “delivery vehicles” to provide half-hour delivery of your future Amazon order. Although there will be hurdles to the widespread commercial adoption of drones as the Federal Aviation Administration works out the regulatory issues surrounding the licensing and use of drones in our airspace, our not-too-distant future could involve a world in which drones are literally buzzing above our heads.
Drones are, among other things, unmanned, light, easy to deploy and relatively cheap. As a result, companies could use drones for numerous purposes, including scientific research and exploration, monitoring livestock or gas pipelines, remote troubleshooting of technology, finding lost shipments or even as a substitute for the Super Bowl blimp. Because of advances in camera, video and audio technology (and the decreasing cost of that technology), however, drones could also be used to collect and communicate massive amounts of information about individuals and their everyday lives. Imagine a company taking its drones out for a spin on a Saturday morning in your town to conduct market research, observing how the average person mows the lawn, when the average person goes to grab coffee or how many bags of groceries the average person leaves with from the supermarket. Or, imagine a company flying a drone around its factory or retail location to monitor when its employees go on break or what end-caps its customers gravitate to or avoid. As is true with many new technologies, drones raise complex and often troubling privacy issues (remember your first cell phone…it didn’t have a camera or location services, right?).
In fact, it’s safe to say that many Americans would view the commercial use of drones with suspicion. Consistent with those suspicions, state legislatures have begun scratching the surface on some of the privacy implications of drones. Over the past two years, legislatures in almost every state have considered some form of legislation. As of today, at least twelve states have enacted laws regulating the use or licensing of drones. Many of these laws are focused on limiting government and law enforcement activities. See, e.g., the Florida Freedom from Unwarranted Surveillance Act, Fla. Stat. § 934.50; the Illinois Freedom from Drone Surveillance Act, 725 Ill. Comp. Stat. §§ 167/1–167/35. Other laws have a more unique focus, including an Illinois law criminalizing a person from committing “hunter or fisherman interference” by knowingly “us[ing] a drone in a way that interferes with another person’s lawful taking of wildlife or aquatic life.” 720 Ill. Comp. Stat. § 4/48-3.
However, several new state “drone” laws are clearly intended to address privacy concerns beyond those raised in government and law enforcement contexts, and could impose limitations on a company getting drones off the ground for commercial purposes. For example, an Idaho law, effective July 1, 2013, prohibits any person from using a drone “to intentionally conduct surveillance of . . . or collect information about, or photographically or electronically record specifically targeted persons or specifically targeted private property.” Idaho Code § 21-213(2)(a). In fact, the Idaho law would require that a company first obtain an individual’s written consent to use a drone to collect information about an individual or that individual’s dwelling. Idaho Code § 21-213(2)(a)(i). The Idaho law also imposes a written consent requirement for the public dissemination of any photograph or recording of an individual obtained by a drone. Idaho Code § 21-213(2)(a).
Similarly, a Texas law, effective September 1, 2013, criminalizes and creates a private right of action for the use of a drone “to capture an image of an individual or privately owned real property . . . with the intent to conduct surveillance on the individual or property” or to possess, disclose or otherwise use such images. Tex. Gov’t Code §§ 423.003, 423.004. Although the Texas law includes nearly 20 exceptions to this broad prohibition, including permitting the collection of images with the consent of the individual who owns or lawfully occupies the real property captured in the image, these exceptions are largely limited to government, law enforcement and energy-related purposes. See Tex. Gov’t Code § 423.002.
In addition, an Oregon law provides a private right of action for any person who owns or lawfully occupies real property against a person that “operates a drone . . . flown at a height of less than 400 feet over the property if” that operator has previously flown a drone over the property at a similar low altitude and the owner/occupant of the property notified the operator that she “did not want the drone flown over the property at a height of less than 400 feet.” Ore. Rev. Stat. § 837.380. That is, the Oregon law essentially creates a low-flying drone “opt out,” if you will.
Implications for Business
As state legislatures continue to grapple with the privacy implications of drones, it is safe to say that the Idaho, Texas and Oregon laws will not be the last state laws that impose privacy requirements or limitations that would apply to the commercial use of drones. As with the underlying technology, this will continue to be a rapidly changing legal front. Because drones have not yet been adopted in this country for commercial purposes in any meaningful way, your company likely has not begun considering how it could use drones in the future in its day-to-day operations. However, as noted above, the proverbial sky is the limit. Inevitably, many companies will consider whether they have any viable use of drones. If you are asked about the legal implications to your company, it will be critical to be mindful of potentially applicable state limitations. Moreover, you will have to revisit and consider any privacy policies or other public statements your company has made regarding if, when and how the company collects information about consumers and how it uses and discloses that information.