Are They Watching Me? A Drone Legal Analysis

At Antonelli Law, we review many legislative attempts to address concerns about drones.  One man’s “reasonable expectation of privacy” may not be quite like another, especially when technology enhances the ability to “see.” Clear legislation telling us what is – and what is not – okay may be what the industry needs to realize its potential, without a stifling headwind of invasion of privacy lawsuits, among other concerns.

The United States Supreme Court has stated as recently as 2012, in United States v. Jones, that “in circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.”

One state ‘s reaction to the use of drones (“unmanned aircraft”) is Texas. In 2013, Texas enacted HB 912, which makes it illegal to use “an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image.” Many exemptions are present, such as when being used by  law enforcement, the military, and – curiously – a plethora of exemptions for the utility industry:  images “captured by or for an electric or natural gas utility….for operations and maintenance of utility facilities… for inspecting utility facilities to determine repair, maintenance, or replacement needs…. [and] for assessing vegetation growth for the purpose of maintaining clearances on utility easements.”

But what if you believed that comments you made in 2009 to a pilot about his takeoff and banking maneuvers (followed by complaints to the tower and to the airport owner) made you the object of a campaign by the FAA to surveil you? In 2012, Hank Jacobus filed a federal lawsuit claiming that due to this conversation with the pilot, he became the target of stalking and harassment campaign by the FAA. He claimed private planes and commercial jetliners followed him around the country without a warrant, and that commercial and military planes and drones were rerouted to fly over his home or any other location in which he was present. He believed that he was constantly being watched and monitored and that he had been placed on a terrorist watchlist. He also claimed that law enforcement personnel were trailing him constantly.

The federal court dismissed claims early in the case. It said that the lawsuit’s complaint failed to state a claim and must be dismissed, because “Jacobus’s contention that the FAA is responsible for the alleged surveillance and harassment is particularly implausible when considering the FAA’s mission and function.” The Court said:

Instead, the major responsibilities of the FAA include promoting civil aviation safety, operating a system of air traffic control and navigation for both civil and military aircraft, and developing and carrying out programs to control aircraft noise and other environmental effects of civil aviation. Given these responsibilities, it is extremely unlikely that the FAA would facilitate “buzzing” or harass an individual by using commercial and military aircraft. Jacobus’s contention that the FAA has allowed air traffic controllers, for more than three years, to continuously route and re-route air traffic over Jacobus’s person, regardless of his whereabouts, the weather conditions, predetermined flight plans and patterns, military operations, air space congestion, the schedules of commercial airlines, and the safety of airline passengers, is utterly fantastical.”

The United States Court of Appeals for the Fourth Circuit affirmed the district court’s dismissal of the lawsuit.

The lesson? Perhaps it is that if you think you are being surveilled by the government, you better have a record of the activity. A drone to surveil their drone, perhaps?