Last week the Legislature considered House Bill No. 5217, An Act Concerning Use of Unmanned Aircraft. Drones, formally named unmanned aerial vehicles (UAVS), have gained notoriety in the war on terror, used for surgical strikes, or “targeted killings” of terrorists in remote areas. Military drones, first developed in 1948, fall into two categories: surveillance and those employed to deliver payloads to remote targets. The first powered flight occurred in 1951, and within a decade the development of surveillance drones emerged.Now, however, commercial America is contemplating the domestic use of UAVS. Companies like Amazon and Fedex are exploring the possible use of drones as delivery vehicles. Then there are the hobbyists. Like the model plane and rocket enthusiasts, there is now an active community of recreational drone owners. They operate like any radio controlled, miniature hobby vehicle, over limited areas and at limited heights. This has allowed the hobbyists to escape confrontation with the FAA, operating in the unregulated space from the ground up to 700-1200 feet. Miniature UAVS like the Parrot AR (selling for $300.00), or the DJI Phantom ($700.00) can be equipped with high-powered action cameras and have the capability of being programmed to fly to and from locations.
Immediate concerns that have developed with the proliferation of drones focus on privacy and safety. In 1989 the Supreme Court decided Florida v. Riley to consider whether the police use of a helicopter hovering 400 feet above a suspected marijuana farm violated the farmer’s 4th Amendment “expectation of privacy.” The Court determined that police observed nothing more than what the farmer had exposed to others who may have passed over the home in the public airspace.
As to the safety issue lawyers are now researching the potential liability of drone owners and product sellers in the event of malfunctions that cause injury. In that regard the issue will focus on whether it is reasonably foreseeable that all or parts of a UAV may fall from the sky injuring an unsuspecting passer by. Drone law blogs are even gaining momentum in anticipation of a burgeoning new area of tort law.
H.B. 5217 is focusing on the use of drones by law enforcement. Recent appellate decisions have emerged discussing the 4th Amendment implications of the use of GPS devices for surveillance purposes, establishing the need for the issuance of a search warrant to enter onto the curtilage of a home to surreptitiously plant the hidden device. The concept of curtilage (“The area encompassing the grounds and buildings immediately surrounding a home that is used in the daily activities of domestic life) is key in past decisions limiting how far police may intrude to observe what is transpiring within a home before the need for a warrant erupts. What is readily observable in plain sight on the property, and even through windows, becomes a more complicated question when amplification is employed. Fast forward to the new drones that can silently swoop down to bring remote surveillance right to your window, and the collision with the right to expectation of privacy is magnified.
In an effort to regulate both the potential for the use of UAVS to commit crime but also to set limits for law enforcement proposed Bill, HB 5217, is being considered to: “ (1) Establish the crime of ‘criminal use of an unmanned aircraft’ (2) establish standards for the use of unmanned aircraft by law enforcement agencies; and (3) provide for regulations to be adopted concerning the use of unmanned aircraft in any state airspace that is not subject to federal regulation.” Criminal use of a UAV equipped with a deadly weapon will be a class B felony, punishable up to 20 years. The use of an unarmed UAV in the commission of a crime will be a class C felony, 10 years.
The most striking provisions are those that clearly define when and how police may employ UAVS: “. . . only for a legitimate law enforcement purpose and only pursuant to a warrant or pursuant to an emergency circumstance [where it is reasonable to believe there is an imminent threat to the life or safety of an individual]. . . .” They may only be used “. . . to collect information on the individual, residence or other area that is the subject of a warrant and to prevent the collection of information on individuals, residences or other areas that are not the subject of the warrant.” In another novel regulation the Bill also mandates how such surveillance is to be offered as evidence.
To think that when George Orwell wrote 1984, 65 years ago the idea of Big Brother watching us everywhere was science fiction. It is becoming more and more science fact.