Drones are soaring, but privacy protections lag behind, says ASU expert
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Over the past few decades, drones have evolved from military tools into AI-powered technology used by everyone from corporate giants like Amazon and Walmart to videographers, photographers and law enforcement.
As drones have become increasingly accessible — smaller, smarter and more affordable — their widespread use has sparked growing concerns about privacy and safety.
ASU News spoke with Arizona State University Professor Troy Rule about this rapidly advancing technology and what it means for public privacy in the years ahead.
Rule's research centers on emerging property law issues involving wind energy, domestic drones and other technologies, and he teaches at the Sandra Day O’Connor College of Law.
Note: Answers have been edited for length and/or clarity.
Question: Let’s start on a positive note — how are drones being used today to improve the world?
Answer: Drones have a wide range of potentially beneficial uses. They are already being used extensively to inspect pipelines and transmission lines, to aid in search-and-rescue operations, for aerial photography or videography, and to aid in various types of scientific research.
Q: And then there are drones that can actually peer into private events such as backyard barbecues or birthday parties. Can you elaborate on this?
A: Even many relatively inexpensive modern drones are equipped with zoom-lens cameras that can capture high-definition video or photos from more than 100 feet away, which at least creates the potential for their misuse to invade privacy through windows or in backyards.
Q: What makes this so concerning for the average person?
A: Most people reasonably expect a certain amount of privacy inside their homes or in secluded areas of their backyard. Many Arizonans, for instance, have privacy fences or walls that help prevent others from observing them in their backyard areas. It’s possible to use drones in ways that violate those reasonable expectations of privacy, which can be threatening and unwelcome for many citizens.
Q: When law enforcement uses drones for surveillance, at what point does it become a “search” that requires a warrant?
A: Existing laws generally provide that photos or video evidence obtained from a public vantage point, such as a public street, and do not use unusual/unexpected technological aids, such as night vision or X-ray technologies, is admissible and does not require a warrant.
Property laws more clearly defining the limits of landowners’ property rights in the low airspace immediately above their land would allow for this same principle to apply for drone-obtained evidence as well. For instance, if the law clearly recognized that landowner airspace rights ended at 500 feet above land, then evidence acquired by a surveillance drone using ordinary recording technologies in an area that was zoned for drone overflights would potentially be admissible.
Q: Current U.S. privacy laws weren’t written with drone technology in mind. Where are the biggest gaps in laws today?
A: The U.S. needs laws that more clearly define landowners’ rights to exclude unwanted intrusions of drones into the low airspace immediately above their land. Such clarifying laws could leverage existing property law principles to help more efficiently and fairly govern interactions between drone operators and landowners.
Q: How can policymakers and lawmakers ensure that drone technology develops in a way that respects existing privacy norms?
A: Policymakers should consider how to craft drone laws to respect existing privacy norms while still allowing reasonable uses of drone technologies. Clear property rights and even some other common regulatory tools such as zoning laws can help to promote a desirable balance between drone use and privacy protection.
Q: There have already been several lawsuits involving drones. What are some of the most significant legal cases, and what do they tell us about where the law is headed?
A: The most significant U.S. case related to airspace exclusion rights is the 1946 U.S. Supreme Court case of U.S. v. Causby. This case provided that landowners hold property interests in the “immediate reaches” of space directly above their parcels. More specifically, landowners own “at least as much of the space above the ground as (they) can occupy or use in connection with the land.”
This strongly suggests, contrary to assertions from some commercial drone operators, that landowners do have rights to exclude unwanted drones from flying low above their land. Unfortunately, the precise height of those landowner exclusion rights remains an unresolved and controversial question.
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