National Companies Considering Commercial Drones Must Consider State Privacy Laws

Carlton Fields
Contact

On Feb. 15, the Federal Aviation Administration proposed a regulatory framework applicable to small commercial drones, or unmanned aircraft systems, meaning those weighing less than 55 pounds.1 The comment period on this proposed framework has closed, but it could be months before the FAA promulgates final rules.

Because of this delay, U.S. Sens. Cory Booker, D-N.J., and John Hoeven, R-N.D., introduced the Commercial UAS Modernization Act, which would help to bridge the gap until final FAA regulations take effect. in its current form, the proposed legislation would impose additional, immediate requirements upon those who want to use and test drones for commercial purposes, such as establishing interim guidelines that they must follow. it also sets up a reasonable framework for registration and use of UAS for commercial purposes.2

Any company considering the commercial use of drones in the United States will need to adhere to the eventual FAA regulations and possibly the senators’ proposed law. those operating in more than one state, however, must also consider the impact of state privacy laws to protect themselves from potentially unforeseen liability.

Many states have already enacted privacy laws that implicate drone operation, some of which expressly apply to the operation of unmanned aircraft. Anyone interested in operating drones throughout the U.S. should take note of these applicable, but potentially overlooked statutes.

This commentary highlights just some of the differences in states that have not enacted drone- specific legislation and others that have, such as California, Florida and Texas. It is important to remember that there are 50 state legislatures, as well as the District of Columbia that have acted, or could act, in this area.

Thus, this commentary is intended as a “drone’s eye view” of the applicable legislation and is not all-encompassing. For state-specific or  application-specific  questions,  companies  should  review the individual state’s privacy laws to determine whether those laws expressly or impliedly affect the company’s intended drone operations.

COMMON LAW OR DRONE-SPECIFIC STATUTE?

New York has yet to enact a drone-specific privacy law, although multiple proposals have been introduced. this does not mean, however, that there is no restraint on commercial drone use under the state’s law. Rather, a company considering drone use in New York must review the state’s common law torts jurisprudence, as well as other areas of law involving privacy issues before implementing a drone policy.

Similar to New York, California has not enacted any drone-specific legislation, but it did expand its existing privacy law to apply to “any device,” thus ensuring that drones fall within its ambit.3

In contrast, Florida enacted a drone-specific bill, which Republican Gov. Rick Scott signed into law May 18, expanding the state’s Freedom from Unwarranted Surveillance Act.4 that law originally applied only to law enforcement, but was recently expanded to apply to private actors.

Texas also enacted a drone-specific law. it was one of the first states to do so, and the law took effect Sept. 1, 2013.5

Understanding the extent of each state’s prohibitions is key to an effective drone policy.

CALIFORNIA

California Civil Code Section 1708.8(b) prohibits using a drone “in a manner that is offensive to a reasonable person” to capture or attempt to capture “any type of visual image, sound recording or other physical impression” of a person “engaging in a private, personal or familial activity.” it does not matter if the device actually trespassed on the person’s land if it captured an image, sound recording or other physical impression that would otherwise require a physical trespass.

So long as a person has a reasonable expectation of privacy based on the circumstances, a “private, personal or familial activity” that a drone may not capture includes:

  • Intimate details of an individual’s personal life.
  • Interaction with the individual’s family or significant others.
  • Any activity that occurs on residential property.
  • Other aspects of private affairs or concerns.

California provides for treble damages, as well as punitive damages and a civil fine, where the surveillance was conducted for financial gain. However, California law does not specifically provide for attorney fees and costs.

FLORIDA

In contrast to California’s law, Florida’s statute prohibits the infringement of a reasonable expectation of privacy through surveillance, which is defined in terms of individuals on privately owned real property and the property itself.

With respect to individuals on privately owned real property, surveillance means the observation of such individuals with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements or whereabouts.

With respect to privately owned real property, surveillance means the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

Among other exemptions, Florida’s law also explicitly creates a blanket exception for any business or profession licensed by the state — provided that the surveillance is reasonably “within the scope of practice or activities permitted under such person’s or entity’s license.”

The Florida statute provides for compensatory damages and punitive damages if certain criteria are met. Additionally, Florida provides that the prevailing party (including the defendant) is entitled to attorney fees, or, in some cases, double attorney fees, if the action is tried to a verdict.

TEXAS

Unlike in Florida, Texas’s statute, which broadly states that it is unlawful to intentionally “conduct surveillance on the individual or property captured in the image,” fails to define what surveillance is — thereby potentially banning all conduct that is not specifically permitted.

In other words, under Texas law, many, if not all, uses of imaging devices in connection with drone operations are illegal, unless and until the legislature creates a specific exemption.

Texas enumerates at least 19 specific exemptions, including for real estate brokers, oil pipelines and rig inspections, and in cases where consent is given.

Presumably, under Texas law, a company such as an insurer could include a consent provision in its claims forms to obtain permission to use drones in the adjusting process. other companies considering drone operation should examine the applicable exemptions to determine whether they may similarly avail themselves of a favorable exception.

The Texas law provides for civil penalties of $5,000 or $10,000, depending upon how the image is used, or for actual damages if the plaintiff can prove malice. Texas also allows the prevailing party to recover attorney fees.

NAVIGATING THE STATE LAWS

The language disparities between the several states’ laws are of particular importance in formulating any commercial drone policy.

With regard to the California statute, a company must attempt to determine what is offensive to a reasonable person. Under the Florida law, a company must try to articulate what is reasonably related to the scope of its licensed business practice.

To a litigator, these questions and this phrasing represent an explicit invitation from state legislatures to avoid summary judgment, as these will be questions of fact that may not be easily determined at the outset of any case.

The penalties for violating the statutes are particularly significant, especially because of the stark differences among each state. All three states provide for injunctive relief, though any injunctive relief is governed by each state’s case law.

While California provides for a civil fine, Texas actually criminalizes unlawful drone surveillance. interestingly, Texas provides a defense to prosecution where the image is destroyed as soon as the person knows the image was captured in violation the law. Florida provides only a civil remedy.

There are many other differences among the California, Florida and Texas laws, but these examples provide insight into just how distinct these privacy laws are, and will continue to be, as more states enact legislation that impacts drone operation. Further, in states like New York, which have yet to enact a drone-specific privacy law, a much more extensive review must be undertaken to ensure that the relevant conduct is not be prohibited by any blanket privacy law or common law tort doctrine.

FEDERALISM

Most importantly, any company considering commercial drone use must remember that states may have limited ability to regulate drone use. For example, states may be required to defer to FAA regulations in defining the altitudinal bounds of property ownership.

This consideration may prove critical for states that couch their drone privacy laws in terms of trespass, because flying a drone high above another’s property may still constitute a trespass upon that person’s property. An understanding of this and other interactions between state and federal law is necessary to an effective drone policy.

Finally, the legislation recently introduced by Booker and Hoeven would require UAS operators to provide an attestation that they maintain liability insurance coverage on their drones. While some insurers have begun to offer specialty drone insurance, a company must consider whether individual state laws and regulations would allow blanket liability policies to cover drones where the policies were in place prior to the drone use.

Just as drones can be purchased on the internet in every shape, size and price, there is no one- size-fits-all approach to establishing an internal commercial drone policy. A company that uses drones could expose itself to substantial liability under various state statutes it fails to pay careful attention to certain laws that, when enacted, did not contemplate the proliferation of drone activity on such a massive scale. Thus, companies must consider these laws before their first drone takes flight, and continually monitor the law as it evolves.

 

NOTES

  1. For more information, see Zachary D. Ludens, FAA Proposes Framework of Regulations For Small-Scale Commercial Drones, 33 Westlaw J. Aviation 1, 33 no. 3 WJAViA 1 (Apr. 8, 2015).
  2. Press Release, U.S. Sen. Cory Booker, Booker and Hoeven introduce legislation to Support Commercial Drone Innovation (May 12, 2015), http://1.usa.gov/1QCcjpH.
  3. Cal. Civ. Code § 1708.8.
  4. Fla. Stat. 934.50.
  5. Tex. Gov’t Code Ann. § 423.001 (Vernon’s)

Originally published in Westlaw Journal Aviation, Volume 33, Issue 10 (July 15, 2015). Reprinted with permission of Thomson Reuters. All rights reserved.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields
Contact
more
less

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

Related Case Law

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.