OLR Report 2014-R-0137 answers the question: What is the state of the law protecting individual privacy interests from potential invasion by domestic use of Unmanned Aerial Vehicles or drones?
Unmanned Aerial Vehicles (UAVs), commonly known as drones, are a class of aircraft that can fly without a human operator onboard. UAVs come in a variety of sizes, ranging from small aircraft to the size of conventional aircraft. UAVs are also referred to as unmanned aerial systems (UAS), a term that includes the aircraft and any ground-based pilots, computers, or equipment supporting the UAV. Some UAVs are remotely operated while others fly autonomously along predetermined paths. The domestic use of UAVs by the government and private individuals has significant privacy implications.
Compared to traditional surveillance techniques and technologies, UAVs are a much more adaptable and flexible technology. They are able to surreptitiously track and monitor individuals for long periods, fly into areas that are difficult or dangerous for a human pilot to reach, and can carry technology, such as thermal imaging cameras, that effectively allow the operator to “peer through walls.”
The domestic use of UAVs implicates the privacy interests of private citizens in distinct ways depending on the operator. Governmental use of UAVs is subject to federal Constitutional constraints under the Fourth Amendment’s prohibition on unreasonable search and seizure. It is difficult to know how the Fourth Amendment will apply to UAVs; however, several U.S. Supreme Court cases addressing warrantless aerial surveillance suggest the government may have wide latitude in conducting warrantless surveillance with UAVs.
For private UAV operators, in the absence of statutes setting out specific rights and remedies, privacy interests could be protected in certain circumstances using the tort of invasion of privacy through an unreasonable intrusion upon the seclusion of another. Prevailing on such a claim would entitle the plaintiff to money damages and potentially a court order prohibiting further violations.
The use of UAVs by government agents or private individuals may also be constrained by statute. Currently, there is no specific statutory restraint on UAV use in Connecticut. At least 16 states have adopted laws specifically addressing UAVs.
While the Federal Aviation Administration (FAA) is currently drafting regulations to govern the domestic use of UAVs, the agency has stated the regulations will not address privacy concerns. According to the agency, its obligation to regulate UAVs does not include developing or enforcing policies concerning privacy or civil liberties issues. However, in November 2013, the FAA released a privacy policy governing agency-approved UAV test sites. The policy includes requirements to: (1) have a written, publicly available privacy policy; (2) allow for public comment as part of an annual privacy policy review; (3) require all operators at the test site to have a written plan for use and retention of all data acquired by a UAV; and (4) comply with all applicable local, state, and federal laws concerning privacy and civil liberties.
In the past eight months, there have been several reported instances of UAV use in Connecticut demonstrating the potential privacy implications of UAVs. In January, the Branford Fire Department used a UAV owned by a volunteer firefighter to determine whether it was safe to send firefighters into an area where a fire was threatening to spread into an explosives storage area. Following this success, the department acquired its own drone, which it later used to locate a missing puppy in a swamp. In February, Hartford police noticed a drone hovering over the scene of a fatal car accident. The UAV was owned and operated by an off-duty freelance journalist. The FAA is currently investigating this incident because current federal rules prohibit commercial use of UAVs domestically. In September, the Stamford Advocate reported real estate agents in Fairfield County are already using UAV-produced aerial photography to market high-end homes.
For more information, read the full report.
