Small drone with camera hovering outside my window today.

[Stewie26]

So does anyone think the privacy laws should be updated to catch up with the drone and camera technology? Seems like technology these days moves faster than society can make laws to protect ourselves from some of the negative side effects of advanced technology.

 

[aborgman]

Here is the operative passage, I think:

"...regardless of whether there is a physical
trespass, if this image, sound recording, or other physical
impression could not have been achieved without a trespass unless the
visual or auditory enhancing device was used."

To violate that law it has to be:

"transmitted, published, broadcast, sold/offered for sale, or otherwise used with actual knowledge that it was taken or captured in violation of the statute"

If he isn't selling it or broadcasting it, but just keeping it for private use - that CIVIL statute doesn't seem to apply.

 

[Febs]

Problem is - the air above your property is a "public highway" that you have no right to control.


Look into the case of United States v. Causby(1946).

The Causby family owned a chicken farm. It happened to be underneath the glide paths to the municipal airport, so planes were passing roughly 83 feet above his property. The planes scared his chickens. Scared them so bad they literally killed themselves flying off the walls in fright. "As many as six to ten of their chickens were killed in one day by flying into the walls from fright. The total chickens lost in that manner was about 150,"the Court noted. Production also fell off. The result was the destruction of the use of the property as a commercial chicken farm."

The end result? Triumph for aviators. The Court affirmed that "the air above the minimum safe altitude of flight... is a public highway and part of the public domain."

The first sentence of your post is only partially correct. The question at issue in Causby was whether the use of the above the plaintiff's property as part of the glide path for a nearby airport was an easement which constituted a taking under the Fifth Amendment. The passage that you quoted in your last sentence does appear in the court's decision, but it was not the basis for the decision. In fact, after that passage, the court went on to note that "that general principle does not control the present case" because the flight path at issue was below the minimum safe altitude of flight, and therefore, not within the part of the air that the court recognized as part of the public highway.

The Supreme Court agreed with the lower court that the lower court's findings "plainly establish that there was a diminution in value of the property, and that the frequent, low-level flights were the direct and immediate cause. We agree with the Court of Claims that a servitude has been imposed upon the land." The court thus agreed with the lower court that "an easement was taken." The Supreme Court reversed, however, because the lower court had not made findings sufficient to determine the amount of the award of damages.

In reaching its conclusion, the Supreme Court recognized that, "The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land. ... The fact that he does not occupy it in a physical sense -- by the erection of buildings and the like -- is not material."

 

[Febs]

To violate that law it has to be:

"transmitted, published, broadcast, sold/offered for sale, or otherwise used with actual knowledge that it was taken or captured in violation of the statute"

If he isn't selling it or broadcasting it, but just keeping it for private use - that CIVIL statute doesn't seem to apply.

Actually, you've only partially quoted the statute, and I think you've omitted material provisions. Section 1708.8(b) appears to provide that any "person" who "attempts to capture" the "visual image" under the circumstances described in that section "is liable for constructive invasion of privacy." Section 1708.8(b) does not condition that liability on transmission, etc. In fact, subsection (j) provides, "It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold."

The section you quote, 1708.8(f), appears to create a safe harbor for the publication, sale, etc. of the illegal image, by providing that there is no violation of the statute for the first publication, sale, etc. of the image unless there is actual knowledge of the violation, and there is no liability at all for subsequent publications, sales, etc. I don't read section 1708.8(f) as limiting that part of section 1708.8(b) which imposes liability for making the image in the first place.

 

[bassinplace]

Area 51, here we go.

Seriously though, if someone is setting up a device to record you in your house and you access said device and destroy it, what's the problem, other than destruction of private property? That's probably the route I'd take if it was an ongoing thing. I'm not making any recommendations to the op, though.

 

[bassinplace]

Problem is - the air above your property is a "public highway" that you have no right to control.


Look into the case of United States v. Causby(1946).

The Causby family owned a chicken farm. It happened to be underneath the glide paths to the municipal airport, so planes were passing roughly 83 feet above his property. The planes scared his chickens. Scared them so bad they literally killed themselves flying off the walls in fright. "As many as six to ten of their chickens were killed in one day by flying into the walls from fright. The total chickens lost in that manner was about 150,"the Court noted. Production also fell off. The result was the destruction of the use of the property as a commercial chicken farm."

The end result? Triumph for aviators. The Court affirmed that "the air above the minimum safe altitude of flight... is a public highway and part of the public domain."

I don't think that's quite the same thing as surveilling someone, though.

This might be a job for The Ramones.

 

[Inertialsky]

Do you record people in their houses?

I prefer to record people in my home studio but if there's a musician that's more comfortable in their house then I have a portable rig I can take there.

bazinga

 

[aborgman]

In reaching its conclusion, the Supreme Court recognized that, "The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land. ... The fact that he does not occupy it in a physical sense -- by the erection of buildings and the like -- is not material."

Yes - but he has to realistically be ABLE to do so. The court in no way disagreed with the Air Commerce Act of 1926 - and that declared that the "navigable air space" of the U.S. was a public highway, open to all citizens.

...and we've had repeated cases where courts have thrown out suits for taking photos from the air - see: George Steinmetz for example.

 

[aborgman]

Actually, you've only partially quoted the statute, and I think you've omitted material provisions. Section 1708.8(b) appears to provide that any "person" who "attempts to capture" the "visual image" under the circumstances described in that section "is liable for constructive invasion of privacy." Section 1708.8(b) does not condition that liability on transmission, etc. In fact, subsection (j) provides, "It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold."

It may be - the law is VERY poorly worded, in addition to almost certainly being unConstitutional.

It's also barely been litigated and has almost always gone in favor of the defendant, and most of the times it has been litigated the results are "unpublished" and thus not usable for citation.

There are also some pretty serious questions as to whether it violates the California anti-SLAPP lawa.

 

[Febs]

The court in no way disagreed with the Air Commerce Act of 1926 - and that declared that the "navigable air space" of the U.S. was a public highway, open to all citizens.

That's a red herring, because the drone described by the OP is not flying within "navigable air space" as the Causby court was using that term. The court recognized that "navigable air space" was a term specifically defined by the Air Commerce Act of 1926 to mean, "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." According to the decision, the "minimum safe altitude" at the time of the decision was prescribed as 500 feet during the day and 1000 feet at night for air carriers and from 300 to 1000 feet for other aircraft depending on the type of plane and the character of the terrain.

To put it another way, the part of the Supreme Court's decision that you're quoting simply doesn't apply because the drone was not in the part of the air space that the Supreme Court referred to as a "public highway."

 

[Jim Campbell]

So does anyone think the privacy laws should be updated to catch up with the drone and camera technology? Seems like technology these days moves faster than society can make laws to protect ourselves from some of the negative side effects of advanced technology.

the law is generally a long way behind in terms of practicality,unless you have some pull.....imho best action is to get on record to the county/sheriff/cops/offender, via registered mail......that way if there is a confrontation you're sort of covered.....you know the cops will blow it off as a civil matter,and you know you can't win there, but once you've done all that you can then figure out a way to knock it down....fly rod....bow and arrow,anything with a string and a weight will allow you to reel it in and smash it.....i doubt anyone would bother trying a second time,as those things do have a price tag .....and if he threatens you,you have him cold and yourself on record....

 

[Febs]

It may be - the law is VERY poorly worded, in addition to almost certainly being unConstitutional.

It's also barely been litigated and has almost always gone in favor of the defendant, and most of the times it has been litigated the results are "unpublished" and thus not usable for citation.

There are also some pretty serious questions as to whether it violates the California anti-SLAPP lawa.

Even if we assume for the sake of argument that everything you wrote in this post is true, the risk to the OP's neighbor is still significant, and the statute may be useful in deterring the neighbor's behavior. It would be extremely expensive for the neighbor to defend a suit alleging an infringement of the statute or to mount a challenge to the statute's enforceability. If I were the OP, and this continued to be an issue, I would consult an attorney licensed in California to discuss options and possibly to send a "cease and desist" type letter to the neighbor.

 

[Joe Louvar]

So does anyone think the privacy laws should be updated to catch up with the drone and camera technology? Seems like technology these days moves faster than society can make laws to protect ourselves from some of the negative side effects of advanced technology.

Hmm. I don't know Stewie. Did you call your local PD/Sheriff and ask if its illegal or not in your area yet? Febs seems to strongly believe the current CA laws in place already cover drone and camera technology, so maybe its really only a matter of enforcement - yes, no?

 

[aborgman]

That's a red herring, because the drone described by the OP is not flying within "navigable air space" as the Causby court was using that term. The court recognized that "navigable air space" was a term specifically defined by the Air Commerce Act of 1926 to mean, "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." According to the decision, the "minimum safe altitude" at the time of the decision was prescribed as 500 feet during the day and 1000 feet at night for air carriers and from 300 to 1000 feet for other aircraft depending on the type of plane and the character of the terrain.

To put it another way, the part of the Supreme Court's decision that you're quoting simply doesn't apply because the drone was not in the part of the air space that the Supreme Court referred to as a "public highway."

There has never, to my knowledge, been a definitive legal judgement as to what constitutes "minimum safe altitude" for non-commercial radio controlled aircraft.


"While the FAA suggested that model aircraft operators fly below 400 feet, the document was just an advisory, and two aviation lawyers contacted by Gigaom said the agency has no authority below 700 feet — for now"

...and from the FAA itself:

"Flying model aircraft solely for hobby or recreational reasons does not require FAA approval. However, hobbyists are advised to operate their aircraft in accordance with the agency's model aircraft guidelines (see Advisory Circular 91-57). In the FAA Modernization and Reform Act of 2012 (Public Law 112-95, Sec 336), Congress exempted model aircraft from new rules or regulations provided the aircraft are operated "in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization."

 

[Febs]

Hmm. I don't know Steve. Did you call your local PD/Sheriff and ask if its illegal or not in your area yet? Febs seems to strongly believe the current CA laws in place already cover drone and camera technology, so maybe its really only a matter of enforcement - yes, no?

To be clear, I am participating in this thread purely for discussion purposes, which the OP invited early in the thread, because I find the topic of academic interest. I am not admitted as an attorney in California and am not purporting to give the OP any specific legal advice. With that said, it seems unlikely that his local PD or Sheriff would give him advice on the application of a civil statute; for that type of advice, he should consult an attorney licensed in California.

 

[aborgman]

Even if we assume for the sake of argument that everything you wrote in this post is true, the risk to the OP's neighbor is still significant, and the statute may be useful in deterring the neighbor's behavior. It would be extremely expensive for the neighbor to defend a suit alleging an infringement of the statute or to mount a challenge to the statute's enforceability. If I were the OP, and this continued to be an issue, I would consult an attorney licensed in California to discuss options and possibly to send a "cease and desist" type letter to the neighbor.

Ah... the good old "we may not have any legal standing but we'll get our way by making justice too expensive". A favorite of large, deep pocketed, corporations.

 

[Febs]

There has never, to my knowledge, been a definitive legal judgement as to what constitutes "minimum safe altitude" for non-commercial radio controlled aircraft.


"While the FAA suggested that model aircraft operators fly below 400 feet, the document was just an advisory, and two aviation lawyers contacted by Gigaom said the agency has no authority below 700 feet — for now"

...and from the FAA itself:

"Flying model aircraft solely for hobby or recreational reasons does not require FAA approval. However, hobbyists are advised to operate their aircraft in accordance with the agency's model aircraft guidelines (see Advisory Circular 91-57). In the FAA Modernization and Reform Act of 2012 (Public Law 112-95, Sec 336), Congress exempted model aircraft from new rules or regulations provided the aircraft are operated "in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization."

Frankly, I think that these points make Causby's statement regarding the "public highway" even less applicable to the situation.

 

[Febs]

Ah... the good old "we may not have any legal standing but we'll get our way by making justice too expensive". A favorite of large, deep pocketed, corporations.

There is a huge difference between "I have no legal standing" and "I have legal standing even though the theoretical possibility exists that this statute may someday come under constitutional scrutiny."

 

[aborgman]

Just to be clear to everyone, as I mentioned before, my house is perched on a steep hillside where no one can see in. The drone was maybe a 100 feet away right around the property line. The drone was hovering around 50 feet above ground level and level with my windows. A picture is worth a thousand words so here it is.

So the drone quite possibly was not even OVER your property?

If it wasn't over your property, you likely have very little legal recourse.

 

[aborgman]

There is a huge difference between "I have no legal standing" and "I have legal standing even though the theoretical possibility exists that this statute may someday come under constitutional scrutiny."

A law that may be unConstitutional, that has almost always resulted in victory by the defendant, and can't be cited because none of the cases involving it have been "published"... and you're talking about getting the neighbor (who possibly wasn't even violating the law in question) to quit out of fear of legal costs.

I'm afraid that sort of legalist wrangling, while perfectly legal and all too common, is blindingly unethical.