When Rand Paul went on CNN last month and warned anyone looking to fly a drone over his house that they should “beware” because “I’ve got a shotgun,” you could imagine lots of heads nodding in agreement.
For instance, you might imagine security managers at Apple’s new Silicon Valley “spaceship” headquarters would like to shoot down overhead drones snooping on the construction project. And guards in the Secret Service security shack at the White House might welcome that capability too, after an off-duty intelligence officer crashed his DJI Phantom there last month.
Bravado aside, Paul — the Republican senator from Kentucky and a likely 2016 presidential candidate — was doubtless voicing the opinion of many who believe that drones flying overhead present a huge threat to their personal and business privacy.
But don’t load your shotgun just yet, Senator. Existing federal law and judicial rulings make it clear property owners do not enjoy unlimited privacy rights to their airspace. In fact, some believe that drones — quadcopters, octocopters, and other small-scale unmanned aerial vehicles — are already governed under the same laws that regulate aircraft like helicopters and airplanes.
Those laws, unsurprisingly, make it a crime to shoot down planes flying over your house.
“We don’t want people taking out their shotguns in urban areas and shooting things,” said Hannah-Beth Jackson, a Democrat and state senator from California, adding that Rand Paul “needs to beware that he will be violating a lot of laws and ordinances about shooting a firearm in an urban area. That’s not acceptable behavior.”
Eric Cheng, the director of aerial imaging at DJI, one of the world’s largest consumer drone makers, agrees. “The law,” Cheng said, “is pretty clear about fining or imprisoning people who shoot at aircraft.”
And while Paul himself hasn’t yet shot at anyone’s drone, these opinions haven’t prevented all gun-on-drone hostilities. Last fall, a New Jersey man was arrested after allegedly shooting down a neighbor’s drone. According to CBS Philly, the man was charged with “possession of a weapon for an unlawful purpose and criminal mischief.”
But shotguns aside, do we even have a legal expectation of privacy when it comes to being photographed from above? Can you do anything at all to stop someone from sending their flying camera buzzing over your property?
Like jumping over a fence
Jackson thinks existing laws don’t do nearly enough. That’s why the Santa Barbara Democrat introduced a bill designed to specifically make it illegal to fly a drone without permission over someone’s property at an altitude of less than 400 feet. Airspace over 400 feet is regulated by the Federal Aviation Administration, she said.
Just this weekend, the FAA proposed new guidelines that aim to clarify the rules regulating non-recreational drone use. Under the proposal, drones weighing less than 55 pounds would be prohibited from flying over 500 feet off the ground, and more than 100 miles an hour. Some of the details, including the altitude limits, conflict with Jackson’s bill.
Although she acknowledged that it’s legal to take photographs or video from an airplane or a helicopter over private property, Jackson argues that the dynamics of drones are totally different and that long-standing FAA rules governing aircraft don’t address them.
“When you think about helicopters or airplanes,” Jackson told VentureBeat, “you’re talking 400 feet or more. When you’re talking about drones, you’re talking about eye level. That’s a different issue.”
Jackson is positioning her bill as an aerial replacement for rules that make it illegal to jump over someone’s fence without their permission. It “acknowledges the reality that drones are an interesting and new technology,” she said, “but can still cause the same kind of interference and violation of your physical space” as a fence jumper.
The drones that film Apple’s spaceship campus are a case in point. Although neither Apple nor the videographer who shot one published by AppleInsider last week responded to VentureBeat requests for comment, it’s virtually certain the technology giant didn’t give its permission.
If someone had jumped a fence onto Apple’s property, they would have been subject to arrest for trespassing. And although Jackson does believe drones represent an exciting new technology, “when they violate long-standing principles and people’s expectations of what can and cannot be done with them, it’s important to set guidelines.”
Subject to arrest?
Jon Resnick, DJI’s policy and marketing representative, thinks those guidelines have already been set, and doesn’t see the need for new legislation. Although drones can carry high-quality cameras when flying low over private property, Resnick argued that photographers on board airplanes or helicopters have long been able to take pictures or video with extremely powerful cameras that can outdo just about anything a drone can carry.
“The question is, do we single out this particular type of technology for some type of special treatment?” Resnick asked. “In my opinion, any kind of legislative or regulatory remedy that excludes [drones] from taking an image … is not any kind of enhancement or protection of privacy. That’s the strangulation of that particular technology. It still allows for [aerial pictures] to be taken. It’s just saying this one particular type of technology is not allowed to take it.”
To Gregory McNeal, a professor of law and public policy at Pepperdine University School of Law and a frequent author on drone policy issues, the sentiment behind Jackson’s proposed legislation is “innovative” and a “good start.” However, for technical reasons having to do with how Jackson and the FAA define navigable space that drones use, the bill wouldn’t be enforceable as written, McNeal wrote in Forbes.