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Drones and Privacy

Potential Common Law Claims

By Tiffany Dowell

Editor’s Note: To read more blogs posted by Dowell, please visit: http://agrilife.org/texasaglaw/.

Drones are a hot topic in many circles, including the agricultural industry.  However, as often happens, the law has fallen behind the technology leading many people to question (or incorrectly assume they understand) how private property rights and the use of commercial drones will co-exist.  This blog series will focus on the law potentially applicable in situations where drones fly over the property of another without permission.

Don't Shoot Drones

Don’t Shoot Drones

Shooting ‘Em Down

If a drone is flying over my property, it is trespassing and I can shoot it down.”  I’ve heard this statement made several times over the last few months, and it makes me cringe.  First, as will be discussed in detail below, a drone flying over one’s property may not, in fact, be trespassing.  Likewise, as we will discuss in Part II of this series, there are a number of drone uses that are permitted by law in Texas.  Second, additional legal concerns may exist in situations where a person shoots down a drone.  Because drones used for commercial purposes will soon be governed by the FAA (to read a blog post on the proposed regulations, click here), shooting down a drone could be seen as be akin to shooting down an airplane, as both are governed by the FAA, and could result in serious consequences, including terrorism charges.  Another potential claim that could be brought by a drone owner is destruction of private property.  A lawsuit has been filed by a drone operator whose drone was shot down in Kentucky, seeking a ruling that drones flying in public airspace may not be shot down and compensation when they are shot.  [Read article here.]   Also, keep in mind that various laws regarding shooting firearms could apply.  For example, it may be illegal to discharge a firearm in a person’s back yard if he or she lives in an urban area.  Finally, criminal charges have been filed in drone shooting incidents in several states.

In light of this, shooting down a drone over one’s property is not advised!  And for those of you raised in the country like I was who are secretly thinking of the “3 S Rule” (shoot, shovel, and shut up), remember that many drones have cameras recording and transmitting data to a cloud somewhere.  The likelihood off the shooter’s face and the end of a gun barrel being captured on film could be quite high.

Now that we’ve ruled out the idea of shooting down drones, let’s consider what common law claims could exist for drones flying over one’s property.

Trespass

When most people think of a drone flying over their property, they immediately think that a trespass claim would apply.  The law, however, is extremely fact-specific on this issue.  Successfully proving a trespass claim against a drone operator may be quite difficult absent extraordinary circumstances.

A successful trespass claim in Texas requires proof of three elements:  (1) entry; (2) onto the property of another; (3) without the owner’s consent or authorization.  The key question for drone flights is whether such flights cause entry onto the property of another.  At common law, the maxim cajus est solum ejus est usque ad coelum applied and meant that he who owns the soil owns up to the heavens.  Not surprisingly, with the advent of airplanes and modern air travel, this maxim no longer applies in full force.

This issue was addressed by the United States Supreme Court in the 1946 case of United States v. Causby.  In that case, the Court explained the current state of the law regarding airspace trespass:

It is an ancient doctrine that at common law ownership of the land extended to the periphery of the universe.  But that doctrine has no place in the modern world.  The air is a public highway, as Congress has declared.  Were that not true, every transcontinental flight would subject the operator to countless trespass suits.  Common sense revolts at the idea.  To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a claim.

The Court did not, however, rule that an aircraft could never trespass on another’s property, as it went on to state:

We have said that the airspace is a public highway.  Yet it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control over the immediate reaches of the enveloping atmosphere.  Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run….The landowner owns at least as much of the pace above the ground as he can occupy or use in connection with the land.”

As these passages illustrate, the United States Supreme Court did not set a magic height above which aircraft may travel and below which trespass would occur.  The Court’s ruling has been synthesized in the Restatement (Second) of Torts Section 159(2), which has been relied upon by Texas appellate courts.  The Restatement provides:

Fight by aircraft in the air space above the land of another is trespass, but only 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 height at which an aircraft enters into the “immediate reaches” has not been clarified.  The Restatement opines that flights of over 500′ are likely not within the immediate reaches, while flights of less than 50′ likely are within the immediate reaches such that a trespass action could succeed, and flights of 150′ depend on the circumstances.  As the Texas Court of Appeals (14th – Houston) has explained, “most intrusions by aircraft through the atmosphere above land are privileged and do not constitute a trespass.

No Texas appellate courts have addressed this law in the context of drones.  One Texas case addressing this issue with regards to a helicopter is Beavers v. Gaylord Broadcasting Co.  There, a news helicopter hovered about 400′ above a suspect’s home for about 10 minutes.  The suspect’s trespass claim failed when the court held that “a single ten-minute hover over her property at 300 to 400 feet does not, as a matter of law, rise to the level of substantial interference with the use and enjoyment of the underlying land.”  Again, the precise height at which public airspace ends and private property begins is simply a grey area.

Nuisance

A second common claim brought by property owners is that of nuisance.  Under Texas law, nuisance is defined as the substantial impairment of one’s use and enjoyment of his or her own property.  Were a drone flying overhead–even if the drone was in the public air space.  For example, if a drone consistently flew over a person’s property and upset his or her livestock, or disrupted that person’s sleep because of the noise, a nuisance conceivably could occur.  The interference, however, must rise to the level of substantial impairment of use based on the sensibilities of a ordinary person.  Thus, if a person were to claim nuisance based on noise made by a drone, the noise would have to be enough to substantially impair the use of property by an ordinary person.

Invasion of Privacy

Texas recognizes three types of invasion of privacy,two of which could potentially apply to drones.

Intrusion on Seclusion is a cause of action requiring proof of the following elements: (1) intentional intrusion; (2) upon the solitude or private affairs of another; (3) which is highly offensive to a reasonable person; and (4) which is unjustified, unreasonable, or unwarranted.  It is conceivable that under the right circumstances, a drone flying over one’s property could potentially meet these elements if it was capturing images of a highly offensive nature.  Normally, however, a drone flying over one’s property would likely not likely capture such images and this type of claim would be unavailable.

Public Disclosure of Private Facts occurs when a defendant (1) publicizes information about a plaintiff’s private life; (2) such publicity would be highly offensive to a reasonable person; (3) the matter is not of legitimate public concern; and (4) injury results from disclosure.  Again, it is conceivable that someone could capture certain images with a drone that might fall within this category, but this type of situation would certainly not apply to most drone flights over private property.

Take Away Points

  1. Shooting down a drone flying over a person’s property is not a good idea.  It could open the landowner up to a host of legal claims and potential criminal charges.
  2. Just because a drone is flying over another’s property does not mean that the drone is trespassing.  Only if the Restatement factors–entry into the immediate reaches of the airspace and substantial interference with use and enjoyment of the land–are met will a person be able to recover under a trespass lawsuit.
  3. A nuisance claim may be available to a person dealing with drone flights over their property, but only if the required substantial impairment of use of the property occurs.
  4. Drone owners should understand that while generally flying over another’s property is permitted, there are situations where doing so could violate the common law and subject the drone operator to civil liability.  This is particularly true if the drone flight is low over the property, interferes with the person’s activities on the property, or captures sensitive, private images.

Texas Privacy Act

In the absence of federal regulations regarding drones and privacy, states have been left to draft their own legislation.  Thus far, only about 13 states have drone privacy laws on the books.  Texas passed its own law, the Texas Privacy Act (Texas Government Code 423), in 2013.   [View full statute here.]  According to the bill’s sponsor, Lance Gooden, the bill was passed “to address concerns that ordinary Texans could use drones to spy on private property, as well as in response to fears that animal rights groups or environmentalists could keep tabs on livestock ranches or oil pipelines.”

drones for agriculture

Texas A&M Agrilife photo by Kay Ledbetter

Importantly, these rules apply only the use of drones “to capture an image.”  The statute does not appear to apply to drones being flown that are not capturing images as defined by the statute as “capturing of sound waves, thermal, infrared, ultraviolet, visible light, or other electromagnetic waves, odor, or other conditions existing on or about real property in this state or an individual on that real property.”

Lawful Drone Uses

The Texas statute lists a litany of uses for which the use of a drone to capture an image is permitted in Texas:

(1) professional or scholarly research by higher education institutions;

(2) in areas designated as test sites by the FAA;

(3) as part of military operations;

(4) images captured by satellites for mapping;

(5) images captured by an electric or natural gas utility for operations, inspections, maintenance of facilities, for assessing vegetation growth on easements, and routing and siting for the purpose of providing service;

(6) with consent of the person who owns or occupies the property;

(7) pursuant to a valid search or arrest warrant;

(8) if the image is captured by law enforcement or someone acting on behalf of law enforcement and (a) is in immediate pursuit of a suspect and the officers have reasonable suspicion to suspect he has committed a felony offense; (b) for the purpose of documenting a crime scene if a felony has been committed; (c) for the purpose of investigating the scene of a human fatality, accident causing death or serious bodily injury, or any accident on a state or federal highway; (d) in connection with the search for a missing person, (e) to conduct a high-risk tactical operation that poses a threat to human life, (f) on private property generally open to the public where the owner consents to law enforcement public safety responsibilities;

(9) images captured by state or local law enforcement authorities or someone acting on their behalf for the purpose of (a) surveying the scene of a catastrophe or other damage to determine if a state of emergency should be declared, (b) preserving public safety, protecting property, or surveying damage or contamination during a state of emergency, or (c) conducting routine air quality sampling;

(10) at the scene of a hazardous material spill;

(11) fire suppression;

(12) rescuing a person imminent danger;

(13) images captured by a licensed Texas real estate broker for marketing, sale, or financing of real property so long as no individual in the images is identifiable;

(14) of real property or a person on real property within 25 miles of a border;

(15) from a height no more than 8′ above ground level in a public place, if the image was captured without using any means to amplify the image;

(16) of public real property or persons thereon;

(17) images captured by the owner of a oil, gas, water or other pipeline for the purpose of inspection, maintenance, or repair;

(18) in connection with oil pipeline safety and rig protection;

(19) in connection with pot authority surveillance and security;

(20) captured by a registered professional land surveyor in the practice of surveying so long as no individual is identifiable;

(21) captured by a professional engineer in the practice of engineering so long as no individual is identifiable.

Unlawful Drone Uses

The statute also provides certain actions to be unlawful.

Drones may not be used to capture an image of an individual of private real property with the intent to conduct surveillance on the individual or property captured in the image.  In this provision, “intent” means it is a person’s “conscious objective o desire to engage in the conduct or cause the result.”   Further, a person  may not capture an image in violation of this provision, and then possesses, discloses, displays, or distributes or otherwise uses the image.  Violations of these provisions result in convictions of a Class C misdemeanor.  In addition, the owner or tenant of real property may bring suit against the person who captured the image and may seek an injunction, recover a civil penalty of $5,000 for all images captured in a single episode or $10,000 for disclosure, display or other use of an illegally captured image, actual damages if the person discloses or displays the image with malice, and reasonable attorney’s fees.  Further, Images captured illegally may not be used as evidence in any legal proceedings and is not subject to disclosure under discovery, subpoena or other legal process.

It is a defense to liability if the person destroys an image he or she captured or came into possession of as soon as the person knows the image was captured in violation of the law and without disclosing, displaying or distributing the image to a third party.

Additionally, particular rules apply to “critical infrastructure facilities” which include petroleum refineries, electrical power generating facilities, chemical facilities, water intake structures, water treatment plants, waste water treatment plants, natural gas compressor stations, railroad switching yards, trucking terminals, steel making facilities, transmission facilities, certain dams, above ground pipelines, etc.  A person may not knowingly or intentionally fly over one of these facilities lower than 400′, may not make contact with a facility, or come within a distance close enough to interfere with operations or cause a disturbance to the facility.  Violation of this section is a Class B misdemeanor and repeat violations are a Class A misdemeanor.

Take Away Points

  1. Landowners need to be aware that there are a number of lawful uses of drones under Texas law and that not all drone flights over their property are illegal.
  2. If a drone flight is done for an illegal purpose, landowners should be aware of the availability of a civil suit under this statute.
  3. Drone operators should be aware of these statutory provisions and understand where and for what purpose drones may be flown.

Contact Dowell at 806-677-5668 or tdowell@tamu.edu.

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