Guest Column

Is drone privacy up to the states?

August 17, 2018
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Have you seen a drone hovering above you recently? It wouldn't be surprising, given how ubiquitous consumer drones are becoming — as many as 2.5 million now share our national airspace.

Drones are becoming an eye-in-the-sky at sporting events, weddings and outdoor activities, and recreational drone pilots are capitalizing on the unique perspective that entry-level drones offer. Commercial drone pilots take it to the next level, using high-value rigs to provide professional image and data services to their clients.

Notwithstanding their popularity, the unmanned nature of drones has raised privacy concerns across the board. People are increasingly asking who decides when and where a drone gets to hover.

The short answer: The Federal Aviation Administration. The longer answer: The waters are being muddied as drones and privacy become an increasingly hot topic among the public, drone pilots and government regulators.

Safety, not privacy?

To find clarity, citizens are turning to the court system. One high-profile case recently ended, but it left behind some unanswered questions.

In EPIC v. FAA, the Electronic Privacy Information Center, which is a privacy interest group, filed suit against the FAA’s new proposed drone rules for failing to protect privacy. The U.S. Court of Appeals for the D.C. Circuit dismissed EPIC’s challenge for lack of standing — a recognizable injury that gave EPIC a right to sue — because EPIC’s own privacy had not been violated.

While that holding ended the suit nearly before it began, the FAA’s arguments in the case were arguably more significant than the case itself because the FAA seemed to open the door to more state-specific drone laws.

In general, the FAA gets its authority from federal statutes, meaning its power is limited to certain categories of conduct. Its traditional mandate is to ensure the safe and efficient use of national airspace.

In the EPIC case, the FAA reiterated that traditional mandate, saying privacy is “beyond the scope of the proposed rule” because privacy is not within the FAA’s statutory authority. In other words, the FAA is concerned with safety, not privacy.

What about preemption?

This assertion is significant because the FAA typically maintains its own tight control of our national airspace. In fact, the majority of state laws regarding aviation are preempted or rendered invalid by federal authority because the FAA has exclusive authority to regulate the airspace nationwide. This makes sense in most cases. Just imagine the headache of flying from New York to California if every state had different laws governing its own airspace.

But by abstaining from privacy issues in EPIC, the FAA may have opened the door to state-by-state laws on drone privacy.

To illustrate the point, imagine Michigan passes a law prohibiting drone operation within 50 feet of a window of a building. This may be a reasonable step to protect people from drones secretly capturing photos or video of business and personal activities. Still, such a law generally would be preempted because the FAA’s small drone rules allow drone operation within 400 feet above ground level. Adding the 50-feet restriction would be inconsistent with that rule.

Given the FAA’s argument in EPIC, however, it is now less clear how a court should evaluate such a law. It seems that Michigan would have a good argument in favor of the law: If the FAA isn’t going to protect privacy, then who will?

By punting on privacy, the FAA seemed to leave it to individual states or municipalities, making preemption less obvious. In other words, the FAA cannot have its cake — or airspace — and eat it, too.

So, if the FAA attempts to preempt privacy-focused drone laws after expressly kicking the can on privacy, a court may uphold the state law. As a result, more state-based drone laws could significantly increase costs for commercial drone pilots as they attempt to conform to specific laws in any state where they fly.

This area, like any emerging technology, will continue to develop rapidly, and the law will have to develop along with it. While there currently are few laws to protect you from nosy drones, there may be hope — or, if you’re a drone pilot, complication — in the near future.

Clint Westbrook is an attorney at Warner Norcross + Judd LLP with a multidimensional practice that includes cybersecurity and privacy. Andrew Reside recently completed a summer clerkship with the firm and is studying law at the University of Michigan Law School. They can be reached at cwestbrook@wnj.com.

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