States have become extraordinarily active in legislation on the use of drones. For example, several place restrictions on law enforcement use, including Florida. Oregon prohibits a drone operator from using it to fire a bullet, shoot a laser or crash into an aircraft. In North Carolina, “it shall be a Class 1 misdemeanor for any person to fish or to hunt using an unmanned aircraft system,” per N.C. Gen. Stat. Ann. Section 14-401.24. And in Illinois, it is a crime to “use … a drone in a way that interferes with another person's lawful taking of wildlife or aquatic life,” per Illinois Compiled Statutes, 720 ILCS 5/48-3. But the predominant topic for state legislation on drones has been privacy rights. This article addresses why states are regulating drone privacy, and some specific choices made around the country. Commercial entities intent on adopting drones need to pay close attention to actual and proposed laws on a state-by-state basis, to avoid criminal liability, statutory and liquidated damages, and other major civil liability.

The Boring State of Common Law on Visual Surveillance

“Video surveillance is poised for exponential expansion into a new dimension” by way of drones, the court held in Chapdelaine v. Duncan, 2014 BL 349464, 17 (Conn. Super. Ct. Oct. 28, 2014). Yet, state common law has traditionally provided extremely limited privacy rights in connection with actions taken in public or which are available from the public view.

In Boring v. Google, 598 F. Supp. 2d 695 (W.D. Pa. 2009), for example, Pennsylvania residents Aaron and Christine Boring sued Google Inc. with respect to its use of Street View. The Borings discovered that colored imagery of their residence, outbuildings and swimming pool, taken “from a vehicle in their residence driveway … without … waiver or authorization,” had been included on Street View. The Borings sued for, inter alia, invasion of privacy and trespass.

The trial court dismissed the complaint as “devoid of facts sufficient to indicate that the photographs of the Borings' property revealed private facts such that a reasonable person would be highly offended.” On appeal, the U.S. Court of Appeals for the Third Circuit agreed that the Borings stated no invasion of privacy claim, but reinstated the claim for trespass by the Google vehicle that allegedly entered their driveway. “Here, the Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple. There is no requirement in Pennsylvania law that damages be pled, either nominal or consequential,” the court held. In the end, Google consented to a judgment being entered against it for trespass for $1 in nominal damages.