Look up to see the coming battle of privacy vs. access

At some point in the not-very-distant future, you will order something and it will be delivered by drone. It might be delivered to a platform near your house that drones take off and land on. But it will eventually be delivered right to your door by a drone — changing the economics of the so-called “last mile” of delivery. It will also change how property rights are viewed. How much airspace — and how much privacy — are you entitled to?

This is important to us as journalists because it speaks to where we can fly and how we gather our visuals. Is it OK for me to use a drone to get a picture 6 feet off the street, because if I were 6 feet tall and not a compact 5’7″, I could do it without a drone? Can I launch a drone from a public street or a park, fly it to 60 feet above ground level and look into someone’s backyard? How we answer these questions have far-reaching implications for how we do journalism and how we’re perceived as journalists.

There are a bunch of streams that feed into this river of gray areas, but they all come down to a simple precept: When it comes to drones, property rights are privacy rights. The nature of the drone makes it impossible to separate the two.

The 1st problem

Imagine that you own a chicken farm at the end of a government airport’s runway. Planes come screaming over at less than 90 feet and it just scares the hell out of your chickens. How scared are they? They break their own necks against the side of their coop trying to escape the engines’ howl. You complain and the government tells you that it owns all the air around your house and it can do what it wants with it, the same way the government could claim eminent domain and put a highway in your front yard.

U.S. v. Causby

This scenario — loud engines and dead chickens — sets the scene for one of the most consequential and yet vague court decisions for aviation: U.S. v. Causby.  The Supreme Court’s 1946 ruling primarily does two things: 1) It defines airspace as the domain of the federal government and 2) it says that private landowners are entitled to the airspace that “immediately envelops” their property and they can use as much of it as needed. What the case didn’t do was define a clear limit for where your property ends and the National Air Space begins.

Planes crossed Causby’s property at 87 feet. And the federal government has established minimum safe altitudes for manned aircraft at 500 or 1,000 feet, depending on where they are.  We can make an argument that 87 feet is a reasonable limit. But what if a house’s roofline is at a modest 35 feet? Is the homeowner still entitled to airspace up to 87 feet or 100 feet or 500 feet?  And is transiting a property — which is what happened in Causby — different from hovering?

The 2nd problem: The right to photograph has never been affirmed by the Supreme Court

One of the things we teach journalism students is that they have a right to photograph from a public spot, such as a public street or a sidewalk. There’s a long history of this, dating back to the 1890s when Louis Brandeis and Samuel Warren published their “right to privacy” treatise. Here’s the rub: The Supreme Court has never affirmed that right. Lots of district courts have — but those are merely persuasive decisions for other jurisdictions; they don’t have to be followed nationally.

Brandeis and Warren published their article as a response to rapidly developing technologies and Warren’s “abhorrence” to the loss of social privacy those technologies were bringing. But as Chip Stewart and Jeremy Littau point out in this article, legal notions of privacy and the First Amendment have not kept with the development of technology — especially shooting video.

This is evident when we look at how we use drones in journalism. If a train derails and I fly my drone near the derailment site, but not over the railroad’s right-of-way, do railroad officials have a right to restrict my filming? Normally we’d say no — you’re not over their property and you’re in what the courts have defined as public property. But in one case in 2018, Union Pacific Railroad bulls pushed Syracuse, New York police to shut down a news photographer’s drone shooting video adjacent to a derailment. In a 2014 incident, Hartford, Connecticut police forced a pilot flying 150 feet over an accident scene to land his drone and argued he was compromising the scene’s integrity.  We could argue that the right to photograph in a public place has been well established — and the National Air Space is a public space.

These are both incidents that have happened over public property.  What if we have to transit private property to get to a story? What if, while shooting news video of an accident on a state highway, I can also see into the yards of the people that I shoot?

Is there a right to shoot video from the air? Yes. But it’s imperfect for our purposes, because the cases that allow it deal with whether or not law enforcement agencies need warrants to take photographs from the air; they are Fourth Amendment cases, not First Amendment ones. We can make those decisions work, but we need to heat them and bend them a little bit.

This leads us to…

The 3rd problem: The FAA doesn’t care about the First Amendment, but does care about its airspace. Except that it hasn’t stepped in to defend airspace for drone users. Municipalities are filling the vacuum.

There’s a lot of bad stories about drones doing creepy, pervy things. Like when a drone appeared outside of “Dirty Jobs” host Mike Rowe’s house. Or drones hovering over someone’s teenage daughter’s pool party. Or drones appearing outside of someone’s house to watch them disrobe.

Politicians listen to their constituents — and their constituents are freaked out, those concerns amplified by the media hype that drones will become our next robotic overlords.  Where is a person’s castle? Why, it’s their home. A person is entitled to privacy in their home. But what about around their home? And how much of the air around their home? And what is a person’s right to defend airspace?

There’s a number of drones that have been fired on while they fly over private property. In one case in Kentucky, the FAA declined to get involved and a judge said “If the FAA isn’t involved, it must not be a federal case” and dismissed it. In another case that happened during the fall of 2018, someone brought a drone down with a shotgun. The pilot reported it to the FAA, which kicked it to the FBI, which declined to bring charges. So the right to defend airspace exists because of a lack of regulatory willpower to keep it from happening.

Municipalities are passing their own laws — which usually conflict with the supremacy clause of the Constitution, which says federal laws win when local and federal laws conflict. Newton, Massachusetts tried to pass a law barring drones from flying over city limits. A federal court struck it down because the law conflicted with Causby. Thornton, Colorado tried to pass an ordinance in December that would have made it illegal to operate a drone from any city-owned public space; the city council has tabled the motion. The Uniform Law Commission — a hybrid public-private law group that creates model legislation for states to use — has proposed making any drone flight under 200 feet a trespass violation and any photograph or video of the property without the owner’s consent a trespass, as well.

Why are they doing this? Because the FAA has issued press releases asserting its right to control airspace but has chosen not to when the rubber meets the road and it could intervene in a lawsuit to send a message.

And that’s ultimately the problem for drone journalism. Terrestrial photojournalism has well-established laws and ethics and guidelines. Aerial journalism wants to have those — the National Press Photographers Association has developed some — but media photography with drones is a unique animal. The old laws about being able to shoot what’s in plain sight don’t hold up when everything can be in plain sight from 100 feet or 400 feet. The laws that do cover it require stretching. The federal agency involved in regulating the airspace seems reluctant to do so.  And the laws are vague, a decade behind and often being written by people who only understand hype and fear.

The press goes where the action is, where the conflict is, where the agitated people are. So that becomes the real worry. There is no bright line about what we should and shouldn’t do, just behaviors that we can imply from the laws around it. And that’s goes for the drone hatin’, privacy-at-all-costs folks, too.

With no clear rules, and no enforcement of the few rules that exist, we are living in the Wild West. And that benefits no one.

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