California and Florida have recently proposed legislation meant to address the use of unmanned aerial vehicles, or “drones,” to capture images of individuals. The proposed legislation is the latest in a raft of state bills and laws attempting to regulate drone use.

On January 30, 2015, California state senator Hannah-Beth Jackson (D-Santa Barbara) introduced California Senate Bill 142 (“SB 142”) to account for the use of drones to record images of individuals. Under California law, it is impermissible for individuals to “knowingly enter[] onto the land of another person without permission . . . in order to capture any type of visual image, sound recording, or other physical impression of [such person] engaging in a private, personal, or familial activity.” See Cal. Civil Code § 1708.8(a). SB 142 would amend California law such that using a drone below the minimum “navigable airspace” (as defined under 49 U.S.C. § 40102(a)(32)) regulated by the Federal Aviation Administration (“FAA”) to record a person would constitute “knowingly” doing so in violation of California Civil Code Section 1708.8. SB 142 would also deem the use of a drone to fly over a person’s property as wrongfully occupying such person’s property. See Cal. Civil Code § 3334(a).

On February 9, 2015 Florida state representative Larry Metz (R-Yalaha) introduced Florida House Bill 649, titled the “Freedom from Unwarranted Surveillance Act” (“HB 649”). HB 649 would amend a Florida statute that restricts the use of drones by law enforcement and state agencies. See Fla. Stat. § 934.50. HB 649 would restrict state agencies from using a drone “to record an image of… the owner, tenant, or occupant of [] property with the intent to conduct surveillance on the individual . . . in violation of such person's reasonable expectation of privacy without his or her written consent.” The bill defines a reasonable expectation of privacy to exist if a person “is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether [they are] observable from the air with the use of a drone.” The bill also adds a broad definition of “image” to include recording “thermal, infrared, ultraviolet, visible light, or other electromagnetic waves; sound waves; odors; or other physical phenomena.”

These two bills are the latest in a series of moves by states restricting the use of drones. In 2013, nine states (including Florida) passed restrictive drone legislation, and thirty-three state legislatures proposed restrictive drone bills—but did not pass them—by the end of 2013. See Longbrake, Jesse, “Regulating Drones: An Analysis of State-Level Legislation in 2013,” NAAGazette, Vol 8, Number 6-7, p. 4, available here. These bills focused on two main areas: (1) prohibitions on using drones for data collection; and (2) prohibitions on weaponizing drones.

The increase in drone-related legislation is most likely in response to the drone rulemaking process the FAA is charged with undertaking under the FAA Modernization and Reform Act of 2012. The FAA is to complete the rulemaking process by 2015. The FAA is under increased pressure to issue rules after a drone crashed on the White House lawn on January 26, 2015.

For prior coverage related to drones and privacy issues, please click here and here.

Reporter, Stephen Abreu, San Francisco, +1 415 318 1219, sabreu@kslaw.com.