TRESPASS, NUISANCE AND PRIVACY: MORE QUESTIONS THAN ANSWERS?

BY: JEFFREY K. PHILLIPS

Ph: 859-219-8210jeff.phillips@steptoe-johnson.com

http://www.steptoe-johnson.com

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VI. Trespass, Nuisance and Privacy: More Questions Than Answers?

The case of John David Boggs v. William H. Merideth, 3:16-cv-6 (W.D.Ky. at

Louisville), was poised to examine the circumstances under which an unmanned aerial vehicle1

(“UAV”) commits a trespass or invades someone’s privacy. The colorful facts of the case

showed that the daughters of William “Drone Slayer” Merideth were sunbathing on their back

porch.2 They reported to Merideth that a drone was flying near them. Merideth and his

neighbors said the drone hovered over their properties, as low as 10 feet off the ground. The

drone’s owner claimed the UAV was more than 200 feet in the air and was being used to

photograph a friend’s home.3

According to Merideth, when the drone traveled over the six foot privacy fence

surrounding his property, Merideth blasted the drone out of the sky with a shotgun. Police

arrested Merideth and charged him with criminal mischief and wanton endangerment. A judge

subsequently dismissed the criminal charges,4 purportedly stating that the action of the drone was

an invasion of privacy giving Merideth “the right to shoot this drone.”5

The John David Boggs civil lawsuit arose from these events, with Boggs, the owner of

the UAV, proclaiming the incident with Merideth “set the stage for a conflict between state-

based claims of trespass to property, invasion of privacy, and trespass to chattels and long

standing exclusive federal jurisdiction over the national airspace and the protection of air

safety.”6

1 UAV and drone will be used interchangeably in this paper. UAS means “unmanned aircraft systems.” 2 See www.wdrb.com/story/29650818/hillview-man-arrested-for-shooting-down-drone-cites-right-to-privacy 3 See www.wdrb.com/story/ 29670583/update-drone-owner-disputes-suspects-claims-produces-video-claiming-to-show-flight-path 4 Commonwealth v. William Merideth, Bullitt County, KY #15-F-473 (Oct. 26, 2015) 5 www.theverge.com/2015/10/28/9625468/drone-slayer-Kentucky-cleared-charges 6 Boggs v. Merideth, 3:16-cv-6 (W.D.Ky. at Louisville), Complaint for Declaratory Judgment and Damages, page 1.

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The Complaint in Boggs sought a declaration by the federal judge that (1) a drone is an

“aircraft” according to federal law; (2) a drone operating in Class G airspace is operating in

“navigable airspace” within the exclusive jurisdiction of the United States; (3) Boggs was not

operating the drone within Merideth’s property; (4) Boggs did not violate Merideth’s reasonable

expectation of privacy; and (5) a property owner cannot shoot a drone operating in navigable

airspace. Unfortunately, the Boggs Court recently refused to directly address these issues. On

March 21, 2017, Judge Thomas Russell dismissed the case, holding that it was a garden variety

state tort case which did not raise any significant federal issues.7 According to the judge, FAA

regulations “would constitute ancillary issues in this case, in which the heart of Boggs’ claim is

one for damage to his unmanned aircraft under Kentucky state law.”8

Given that recent case law has not definitively drawn the line that divides trespass,

nuisance and privacy from the right to use the sky to operate UAV,9 it may be worthwhile to

examine a United States Supreme Court case decided over seven decades ago. While that

litigation involved government action and federal constitutional principles, the nation’s highest

court’s statements about aircraft and property owner’s rights are instructive.

In United States v. Causby, 328 U.S. 256 (1946), government airplanes frequently flew

over the Causby home and chicken farm. The planes passed 67 feet above the house, 63 feet

above the barn and 18 feet above the highest tree. Startled chickens died when they smashed

into the barn scrambling away from the planes. The noise and glare from the planes also

deprived the Causbys of sleep. Consequently, the Causby family filed a lawsuit contending their

property was taken in violation of the U.S. Constitution.

7 Boggs v. Merideth, 2017 WL 1088093, page 4 (W.D. Ky. 2017). 8 Id., at page 10. 9 Some state legislatives have weighed in on this issue. Oregon, for instance, says the “Attorney General, on behalf of the state of Oregon, may bring an action or claim for relief alleging nuisance or trespass arising from the operation of an unmanned aircraft system in the airspace over this state.” O.R.S § 837.380(6).

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The government fought the claim arguing that it had complete and exclusive sovereignty

in the air space and had a public right of freedom of transit in air commerce. Id., at 260. Since

the flights were within minimum safe altitudes and no physical invasion of the Causbys’ property

occurred, the government maintained there was no unconstitutional taking.

The Supreme Court acknowledged that “the air space is a public highway,” yet said “if

the landowner is to have full enjoyment of the land, he must have exclusive control of the

immediate reaches of the enveloping atmosphere.” Id., at 264.

The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. The fact that he does not occupy it in a physical sense – by the erection of buildings and the like – is not material. As we have said, the flight of airplanes which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it. The super-adjacent air space at this lower altitude is so close to the land that continuous invasions of it affect the use of the surface of land itself. We think that the landowner, as an incident his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.

Id., at 265. (citations omitted).

While the Causby Court recognized that a property owners’ rights extended beyond the

land itself, a concrete demarcation between a property owner’s right to peaceably enjoy the land

and someone else’s right to use air space was not established. “The airspace, apart from the

immediate reaches above the land, is part of the public domain. We need not determine at this

time what those precise limits are. Flights over private land are not a taking, unless they are so

low and so frequent as to be a direct and immediate interference with the enjoyment and use of

the land.” Id. at 268.

Like the Causby case, federal statutes and regulations do not clearly identify when UAV

commit a trespass or invade a property owner’s privacy rights. A “citizen of the United States

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has a public right of transit through the navigable airspace.”10 “Navigable airspace” means

airspace above the minimum altitudes of flight prescribed by Federal Aviation Administration

(FAA) regulations, including airspace needed to ensure safety in the takeoff and landing of

aircraft.11 For example, Class G airspace is from the land’s surface up to 1,200 feet above

ground level.12 UAV regularly operate in Class G airspace.13

Notably, FAA regulations provide that no person may operate an aircraft14 in a careless

or reckless manner so as to endanger the life or property of another.15 An owner or operator of

aircraft “is liable for personal injury, death or property loss or damage on land or water only

when a civil aircraft…is in the actual possession or control of the lessor, owner or secured party,

and the personal injury, death or property loss or damage occurs because of (1) the aircraft…or

(2) the flight of, or an object falling from, the aircraft….”16

No federal law suggests, however, what constitutes a trespass, nuisance or invasion of

privacy because of the flight of UAV.17 The FAA simply warns that “operators should be aware

that state and local authorities may enact privacy-related laws specific to UAS operations.”18

Very few state legislatures have filled in the gaps to define a trespass, nuisance or privacy

invasion claim against a drone operator. As presented in Section VII of this paper, California

10 49 U.S.C. § 40103(a)(2). 11 49 U.S.C. § 40101 and § 44101. 12 14 C.F.R. § 91.155. 13 The maximum permissible altitude for UAV is 400 feet above ground level. 14 C.F.R. § 107. 14 Drones are considered “aircraft” that are within the jurisdiction of the FAA. See Huerta v. Pirker, NTSB Docket CP-217, NTSB Order No. EA-5730 (Nov. 18, 2014). 15 14 C.F.R. § 91.13. 16 49 U.S.C. § 44112(b). 17 The National Telecommunications & Information Administration drafted in 2016 “Voluntary Best Practices for UAS Privacy, Transparency, and Accountability,” but these practices are expressly “not meant to create a legal standard of care by which the activities of any particular UAS operator should be judged.” www.ntia.doc.gov/files/ntia/publications. In any event, these best practices acknowledge that “privacy is hard to define, but it is important. There is a balance between your rights as a drone user and other people’s rights to privacy. The balance isn’t easy to find.” Id., at page 8. 18 Advisory Circular No.: 107-2, Section 1.1.3 (2016).

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created a statutory cause of action when a UAV recording is made of a person on private

property even without a “physical trespass” onto the property. The protection in California is for

people “engaging in a private, personal or familial activity and the invasion occurs in a manner

that is offensive to a reasonable person.” Cal. Civ. Code § 1708.8. Florida has a similar

statutory claim. F.S.A. § 934.50. Nevada and Oregon allow for a “trespass” action if a drone

flies over someone’s property and the property owner previously told the drone operator the

drone was not authorized to fly over the property. N.R.S. 493.103 (drone must fly less than 250

feet over the property for a claim to exist and unreasonably interfere with the existing use of the

real property); O.R.S. § 837.380. No other states create a statutory cause of action for trespass,

nuisance or invasion of privacy because of an annoying or harassing UAV.19

Returning to the “Drone Slayer” case that started this section, it is fair to say that there

exist no distinct and definite rules on the circumstances under which a drone violates a

landowner’s rights when the drone does not physically touch any property, but still encroaches

on a person’s use of the property. Most states will likely examine the elements contained in their

jurisdiction’s laws of trespass, nuisance or invasion of privacy. The requirements for these

causes of action are generally described as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

19 In Rivera v. Foley, 2015 WL 1296258 (D.Conn. 2015), the plaintiff, an employee of a television station, heard about a serious car crash on a police scanner. The plaintiff operated his drone about 150 feet above the demarcated crime/police investigation scene. Although the plaintiff remained outside the investigation boundaries, police told the plaintiff to leave the area and remove his drone which purportedly compromised the crime scene’s integrity. The plaintiff filed a civil rights lawsuit against the police. The judge determined that “plaintiff’s operation of an unusual and likely unidentified device into a cordoned-off area at the scene of a major motor vehicle accident and ongoing police investigation provides arguable reasonable suspicion that plaintiff was interfering with police activity.” Id., at page 8. Moreover, “plaintiff directed a flying object into a police-restricted area, where it proceeded to hover over the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene.” Id., at page 10.

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Restatement (Second) of Torts § 652.

A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.

Restatement (Second) of Torts § 329.

Flight by aircraft in the air space above the land of another is a trespass if, but only if, (a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes substantially with the other’s use and enjoyment of his land.

Restatement (Second) of Torts § 159.

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

Restatement (Second) of Torts § 822.

VII. New State Laws, Rules and Regulations

The proliferation of UAV in the United States has prompted state governing bodies to

consider drone laws each legislative session. Below are current state regulations and statutes

addressing certain aspects of UAV operation.

Arizona

A.R.S. § 13-3729: It is unlawful for a person to operate or use UAV to intentionally

photograph or loiter over or near a critical facility in the furtherance of any criminal offense. A

city, town or county may not enact any ordinance that relates to the ownership or operation of

UAV.

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California

Cal. Civ. Code § 43.101: An emergency responder shall not be liable for any damage to

UAV if that damage was caused while the emergency responder was providing, and the UAV

was interfering with, emergency services. See also Cal. Gov. Code § 853.

Cal. Penal Code § 402: Every person who impedes, including through use of UAV,

police, medical or emergency personnel in the performance of their duties in coping with an

emergency, is guilty of a misdemeanor.

Cal. Civ. Code § 1708.8: A person is liable for physical invasion of privacy when the

person knowingly enters, or a person hires someone to enter, onto the land or into the airspace

above the land of another person without permission in order to capture recordings of the

plaintiff engaging in a private, personal or familial activity and the invasion occurs in a manner

that is offensive to a reasonable person. A constructive invasion of privacy occurs if the above

conditions are met and the person uses UAV to make the recording, regardless of whether there

is a physical trespass. Damages may include a fine of $5,000 to $50,000, disgorgement of the

profits, treble damages and punitive damages.

Colorado

2 CCR 406-0:004: It shall be unlawful to use a drone to look for, scout, or detect wildlife

as an aid while hunting.

Delaware

11 Del.C. § 1334: No person shall knowingly operate, direct or program UAV to fly over

any event at which more than 1,500 people attend, over any critical infrastructure or over any

emergency where first responders are actively engaged. These activities are allowed if the

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property owner or occupier gives written permission or the FAA authorized it. Counties and

cities may not prohibit, restrict or regulate UAV operation.

Florida

F.S.A. § 934.50: A law enforcement agency may not use a drone to gather evidence or

other information, except to counter a high risk of terrorist attack or if a search warrant has first

been obtained or if swift action is needed to prevent imminent danger. A person may not use a

drone to conduct surveillance or record images in violation of a person’s reasonable expectation

of privacy. This privacy expectation is presumed if the person is not observable by persons

located at ground level in a place where they have a legal right to be.

Drone use is permitted for aerial mapping, delivering cargo, appraising property, or for

needs of electric, water or gas utilities. A civil lawsuit may be based on a violation of this statute

with remedies including compensatory damages, injunctive relief, attorneys’ fees and punitives.

Idaho

I.C. § 21-213: Absent a warrant or for emergency response, no person shall use an

unmanned aircraft system to intentionally conduct surveillance or collect information about or

record specifically targeted persons or property. No person shall use UAV to record an

individual, without that person’s consent, for the purpose of publishing or publicly disseminating

the recording. A person subject to such conduct has a cause of action against the individual who

committed the prohibited act and may recover damages (at least $1,000) and attorneys’ fees.

Illinois

725 ILCS 167/40: Law enforcement agencies may not acquire information from or direct

the acquisition of information through the use of a drone owned by a private third party.

725 ILCS 167/10: Law enforcement agencies may not use a drone to gather information.

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725 ILCS 167/15: Law enforcement agencies may use a drone to counter a high risk of a

terrorist attack; if a search warrant is first obtained; if swift action is needed to prevent imminent

harm to life or forestall an escape or the destruction of evidence; if a missing person is being

sought; if a crime or crash scene is being photographed; or if used during a disaster or public

health emergency.

20 ILCS 5065/15: The Unmanned Aerial System Task Force was created to consider

commercial and private use of drones, landowner and privacy rights, and general rules and

regulations for the safe operation of drones.

Indiana

IC 35-33-5-9: A law enforcement officer must obtain a search warrant in order to use an

unmanned aerial vehicle, unless exigent circumstances exist; there is a substantial likelihood of a

terrorist attach; a search and rescue operation is ongoing; a natural disaster happens; surveying

for non-criminal justice purposes; images of a motor vehicle accident are being obtained; or

consent of the property owner has been secured.

IC 14-22-6-16: A person may not knowingly use an unmanned aerial vehicle to search

for a wild animal to which the hunting season applies as an aid to take the wild animal.

Iowa

I.C.A. § 321.492B: The state or a political subdivision of the state shall not use an

unmanned aerial vehicle for traffic law enforcement.

I.C.A. § 808.15: Information obtained as a result of the use of an unmanned aerial

vehicle is not admissible as evidence in a criminal or civil proceeding, unless the information is

obtained pursuant to the authority of a search warrant, or unless the information is otherwise

obtained in manner that is consistent with state and federal law.

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Kansas

K.S.A. 60-31a06: The Court may issue a protection from stalking order restraining the

defendant from harassing, telephoning, contacting or otherwise communicating with the victim.

K.S.A. 60-31a02: Harassment means a knowing and intentional course of conduct

directed at a specific person that seriously alarms, annoys, or terrorizes the person and serves no

legitimate purpose. Harassment includes using an unmanned aerial system over or near a

dwelling, occupied vehicle or other place where one may reasonably expect to be safe from

uninvited intrusion or surveillance.

Kentucky

House Bill No. 291: Citizen’s Freedom from Unwarranted Surveillance Act, if enacted,

limits law enforcements’ use of drones unless a warrant is first obtained or exigent circumstances

exist. No evidence obtained or collected as the result of the use of UAV shall be admissible as

evidence in any civil, criminal, or administrative proceeding for the purpose of enforcing state or

local law except when the evidence is collected after issuance of a warrant or upon exigent

circumstances or the evidence is offered against the owner or operator of the UAV to show

misconduct.

Louisiana

LSA-R.S. 14:337: Unlawful use of an unmanned aircraft system is the intentional use of

UAV to conduct surveillance of, collect information or record a refinery, manufacturing facility,

school, power generation plant or correctional facility. Owners may use UAV over their own

property.

LSA-R.S. 3:45: Operators of UAV for agricultural commercial operation are required to

obtain a license and register their activity.

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Maine

25 M.R.S.A. § 4501: A law enforcement agency may not use UAV for criminal

investigations without a warrant, unless there exists a recognized exception to the warrant

requirement; or for a search and rescue operation; or to assess fires, floods or storm damage.

Law enforcement may not use UAV to conduct surveillance of private citizens peacefully

exercising their constitutional rights of free speech and assembly.

Mississippi

Miss. Code § 97-29-61: Any person who looks through a window, hole or opening, or

otherwise views by means of any instrumentality, including, drones, into the interior of a

bedroom, bathroom, changing room, spa, or tanning booth, or the interior of any other area in

which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy

of a person inside and without the consent or knowledge of every person present, for the lewd,

licentious and indecent purpose of spying, shall be guilty of a felony.

Montana

MCA 46-5-109: In any prosecution, information from an unmanned aerial vehicle is not

admissible as evidence unless the information was obtained pursuant to a search warrant or in

accordance with judicially recognized exceptions to the warrant requirement.

Nevada

N.R.S. 493.109: A person shall not operate UAV within 250 feet from a critical facility

or within five miles of an airport.

N.R.S. 493.100: An operator of UAV who engages in trick or acrobatic flying over a

heavily populated area or public gathering is guilty of a misdemeanor if the operation is with

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reckless disregard for the safety of other persons and with willful indifference to injuries that

could reasonably result.

N.R.S. 493.103: A person who owns or lawfully occupies real property may bring an

action for trespass against the owner or operator of UAV that is flown less than 250 feet over the

property if the UAV owner/operator previously engaged in such conduct and the property

owner/occupier notified the UAV owner/operator that such conduct was not authorized. A cause

of action does not exist if the UAV is lawfully in the flight path for landing at an airport; the

UAV is in the process of taking off or landing; the UAV was used by law enforcement; the UAV

was used by land surveying or by a business function approved by the FAA (and does not

unreasonably interfere with the existing use of the real property). A plaintiff who prevails in a

case under this statute is entitled to recover treble damages, attorneys’ fees and injunctive relief.

N.R.S. 493.112: Law enforcement agencies shall not operate drones to gather evidence

upon any property at which a person has a reasonable expectation of privacy, unless a warrant is

first obtained; unless exigent circumstances exist; unless written consent is obtained; unless there

exists the threat of an act of terrorism or unless there is a declared state of emergency or disaster.

N.R.S. 493.130: Any person operating UAV while under the influence of drugs or

alcohol or in a careless or reckless manner so as to endanger the life or property of another is

guilty of a gross misdemeanor.

New Hampshire

N.H. Rev. Stat. § 207:57: No person shall use a drone or UAV with the intent to conduct

video surveillance of private citizens who are lawfully hunting, fishing or trapping without

obtaining the written consent of the person being surveilled prior to conducting the surveillance.

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North Dakota

NDCC 29-29.4-02: Information obtained from an unmanned aerial vehicle is not

admissible in a prosecution or proceeding unless the information was obtained pursuant to the

authority of a search warrant or in accordance with exceptions to the warrant requirement.

Ohio

OAC 1501:31-15-02: It shall be unlawful for any person to hunt, shoot or attempt to take

any wild bird or wild animal by means, aid or use of aerial drones.

Oklahoma

3 Okl.St. § 322: A person shall not intentionally or knowingly operate UAV less than

400 feet above the ground at a refinery, power plant, dam, cell tower or compressor station, nor

allow UAV to interfere with the operations at a critical infrastructure facility.

Oregon

O.R.S. § 837.995: It is a felony to cause, or attempt to cause, UAV to direct a laser,

projectile or crash into an aircraft in the air.

O.R.S. § 837.320: Law enforcement agency may acquire information through the use of

UAV if a warrant is issued or exigent circumstances exist.

O.R.S. § 837.340: Law enforcement agency may operate UAV for the purpose of

reconstruction of a specific crime scene.

O.R.S. § 837.345 Law enforcement agency may operate UAV for the purpose of

training.

O.R.S. § 837.335: Law enforcement agency may operate UAV for the purpose of search

and rescue activities, assisting in an emergency presenting imminent threat of death, or during a

state of emergency.

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O.R.S. § 837.310: If law enforcement improperly collects information through use of

UAV, that information is not admissible in any judicial proceeding.

O.R.S. § 837.380: A person who owns or occupies property may bring an action against

any person who operates UAV over the property, if the UAV operator has flown over the

property on one previous occasion and been notified the property owner does not want the UAV

flown over the property. UAV taking off or landing are not subject to suit, nor are commercial

operators acting in compliance with authority granted by the FAA. Recoverable damages

include attorneys’ fees, injunctive relief, and treble damages.

Tennessee

T.C.A. § 39-13-903: A person commits a criminal misdemeanor if the person uses a

drone to capture an image of an individual or privately owned real property with the intent to

conduct surveillance on the individual or property. It is also a misdemeanor to use a drone to

intentionally capture an image of an individual or event at an open-air event wherein more than

100 individuals are gathered and the person does not have the venue owner’s consent. It is a

defense to prosecution that the person destroyed the image as soon as the person had knowledge

that the image was captured in violation of this law and before the image was disclosed to a third

party.

T.C.A. § 39-13-609: The use of a drone to gather evidence or information shall

constitute a search. No law enforcement agency shall use a drone to gather evidence or other

information, except if a search warrant is first obtained; if a high risk of a terrorist attack exists;

if exigent circumstances are present; if searching for a fugitive or monitoring a hostage situation;

or if searching for a missing person. An aggrieved party may initiate a civil action against a law

enforcement agency for violation of this section.

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T.C.A. § 39-13-905: An image captured in violation of § 39-13-903 or an image

captured by a drone that was incidental to the lawful capture of an image may not be used as

evidence in any criminal, administrative or civil proceeding and is not subject to discovery or

subpoena.

T.C.A. § 39-14-405: A person commits criminal trespass if the person enters or remains

on property without the consent of the owner. Consent is inferred on commercial property or

other property when the owner communicates intent for the property to be open to the general

public. Enter includes when a person causes a drone to enter that portion of the airspace above

the owner’s land not regulated as navigable airspace by the F.A.A. It is a defense to prosecution

that the person’s conduct did not substantially interfere with the owner’s use of the property.

T.C.A. § 70-4-302: It is a misdemeanor to use a drone with the intent to conduct video

surveillance of a hunter without prior written consent of the hunter.

Texas

V.T.C.A., Government Code § 423.003: A person commits a misdemeanor if the person

uses an unmanned aircraft to capture an image of an individual or privately owned real property

with the intent to conduct surveillance. It is a defense to prosecution that the person destroyed

the image as soon as the person had knowledge that the image was captured in violation of this

statute and the image was never displayed, disclosed or distributed to a third party.

V.T.C.A., Government Code § 423.005: An image captured in violation of § 423.003, or

an image captured incidentally by UAV may not be used as evidence in any criminal or civil

proceeding and is not subject to discovery, subpoena or other means of legal compulsion for its

release.

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V.T.C.A., Government Code § 423.006: An owner or tenant of privately owned real

property may bring a lawsuit against a person who violates § 423.003 and recover $5,000 for

images captured in a single episode, $10,000 for disclosure of images in a single episode,

attorneys’ fees, (and actual damages if the person who captured or displayed the images acted

with malice.)

V.T.C.A., Government Code § 423.002: It is lawful to capture an image using UAV

pursuant to a warrant; while in rescue operations; to survey a state of emergency; to investigate a

serious motor vehicle accident; as part of the electric or natural gas utilities; for real estate

brokers; in connection with oil, gas, water or other pipelines; in connection with engineering or

surveying. It is also lawful to capture an image using UAV from a height of eight feet or less in

a public place, if the image was captured without using any means to amplify the image beyond

normal human perception. Plus, it is lawful to capture an image using UAV of public real

property or a person on that property.

V.T.C.A., Government Code § 423.0045: A person commits a misdemeanor if the

person intentionally or knowingly operates UAV over a critical infrastructure facility and the

UAV is not higher than 400 feet above ground level.

Utah

U.C.A. 1953 § 63G-18-103: A law enforcement agency may not use data acquired

through UAV unless the data is obtained pursuant to a search warrant, a judicially recognized

exception to warrant requirements, to locate a missing person where there is no reasonable

expectation of privacy, or from a nongovernmental actor if that actor believes in good faith that

death or serious bodily injury may result and disclosing the data will assist in remedying the

emergency.

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Vermont

20 V.S.A. § 4622: A law enforcement agency shall not use a drone for the purpose of

investigating, detecting or prosecuting crime, except pursuant to a warrant; as part of search and

rescue; to asses natural disasters; or because of exigent circumstances.

13 V.S.A. § 4018: No person shall equip a drone with a dangerous weapon or fire a

projectile from a drone. Violation of this statute may result in imprisonment up to one year and a

$1,000 fine.

Vt. Admin. Code 16-4-159: 4.0: It shall be unlawful for any person to use UAV to

locate, drive or harass any wild animal.

Virginia

Va. Code § 19.2-60.1: No department of law enforcement shall utilize UAV except

during the execution of a search warrant or where necessary to alleviate an immediate danger to

any person, traffic assessment, natural disaster assessment or search and rescue.

Washington

WAC 172-110-070: The use of drones is prohibited in areas where there is a reasonable

expectation of privacy in accordance with accepted social norms, such as restrooms, locker

rooms, in and around residential buildings or facilities and Eastern Washington University office

and work areas.

West Virginia

W.Va Code § 20-2-5: It is unlawful at any time for any person to use a drone to hunt,

kill, herd or drive any wild bird or wild animal.

Wisconsin

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W.S.A. 175.55: No law enforcement agency may use a drone to gather evidence or other

information in a criminal investigation from or at a place where an individual has a reasonable

expectation of privacy without first obtaining a warrant; however, a drone may be used in a

search and rescue operation; to locate an escaped prisoner; to surveil a place for the purpose of

executing an arrest warrant or if necessary to prevent imminent danger or imminent destruction

of evidence.

W.S.A. 942.10: Whoever uses a drone with the intent to record or observe another

individual in a place or location where the individual has a reasonable expectation of privacy is

guilty of a misdemeanor.

W.S.A. 941.292: Whoever operates any weaponized drone is guilty of a felony.

W.S.A. 114.045: No person may operate a drone over a correctional institution. If that

occurs, a $5,000 fine may be imposed.

VIII. The Discoverability of Drone Footage and Admissibility of Surveillance in Court Proceedings.

Obtaining drone footage from law enforcement agencies or government entities is

difficult. Freedom of Information Act (FOIA) and “open records” requests have frequently met

with resistance. See U.S. v Nava-Arellano, 525 Fed. Appx. 635 (9th Cir. 2013) (trial court did not

abuse discretion by excluding printouts showing government’s capability to conduct surveillance

of border using unmanned aircraft). Electronic Frontier Foundation v. Dept. of Homeland

Security, 2014 WL 1320234 (N.D. Cal. 2014) (release of requested information would disclose

law enforcement techniques and procedures and the release of information would risk

circumvention of the law).

Of course, government officials have been much more successful in compelling video

footage from a drone operator when that operator is the target of a criminal investigation. In one

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recent case,20 a “YouTube” video showed a gun firing shots from a drone. A second “YouTube”

clip depicted a flame-thrower on the drone. The Federal Aviation Administration (FAA)

initiated an investigation and issued administrative subpoenas to the defendants seeking

production of videos obtained through use of the drone. The defendants refused to comply

arguing the drone was not an aircraft over which the FAA had jurisdiction.21 The Court

disagreed, held the defendants’ drone plausibly fell “within the definition of an ‘aircraft’ for the

purpose of federal law,”22 and the defendants were ordered to honor the subpoena.23

There is only one state legislature that enacted a law directly addressing the

discoverability of information collected by UAV in which the operator intended to conduct

surveillance of a person.24 An image captured by UAV in violation of Texas’ surveillance law,

or an image incidentally captured during lawful UAV use, may not be used as evidence in any

criminal proceeding or civil action, and “is not subject to discovery, subpoena, or other means of

legal compulsion for its release,”25 except to prosecute the person for unlawful use of UAV.

There is very little case law addressing the discoverability of videos taken by UAV in the

context of a civil lawsuit. There is one on-going legal dispute involving a drone manufacturing

company. Former employees of the company supposedly absconded with confidential, trade

secret and proprietary information. A “temporary restraining order” was ordered in that case.26

20 Huerta v. Haughwout, 2016 WL 3919799 (D.Conn. 2016). 21 On the other side of the coin, in Village of DeForest v. Strelchenko, 2017 WL 663202 (Wisc. App. 2017) the criminal defendant appealed his conviction of disorderly conduct alleging the local municipality lacked “jurisdiction over drone aircraft due to federal preemption.” The Court did not consider this argument because the defendant failed to designate the record or provide a complete record to the appellate court. 22 Id., at page 4. 23 Interestingly, the judge in Haughwout said the “FAA believes it has regulatory sovereignty over every cubic inch of outdoor air in the United States (or at least over any objects therein).” He noted that “it is far from clear that Congress intends – or could constitutionally intend – to regulate all that is airborne on one’s own property and that poses no plausible threat to or substantial effect on air transport or interstate commerce in general.”24 V.T.C.A., Government Code § 423.003(a). 25 V.T.C.A., Government Code § 423.005(a)(1) and (3). 26 UIC Government Services, LLC v. James Fleitz, 2015 WL 12864202 (D. Alaska 2015).

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Specifically, the defendants were ordered to produce “any and all raw and/or edited video

footage recorded from any Arrowdata unmanned aerial vehicle (drone)…” As noted, that case

did not arise from a claim of trespass, invasion of privacy or nuisance, so it may be of limited

value in analyzing the issues presented in this paper.

Most likely, in the absence of a state statute, requests for drone footage will be analyzed

per the applicable rule of civil procedure. For instance, Rule 26(b)(1) of the Federal Rules of

Civil Procedure permits parties to obtain discovery regarding any nonprivileged matter that is

relevant to any party’s claim or defense and proportional to the needs of the case, considering the

importance of the issues at stake in the action, the amount in controversy, the parties’ relative

access to relevant information, the parties’ resources, the importance of the discovery in

resolving the issues, and whether the burden or expense of the proposed discovery outweighs its

likely benefit.

The admissibility of drone footage into evidence at trial will probably follow a similar

path. Relevant footage will likely be admissible27 unless its probative value is substantially

outweighed by unfair prejudice, confusing the issues or misleading the jury.28 Not surprisingly,

the drone footage will need to be properly authenticated before being admitted.29

Some statutes directly address the admissibility into evidence of videos or photographs

taken by UAV. Iowa, for instance, has a statute that says information “obtained as a result of the

use of an unmanned aerial vehicle is not admissible as evidence in a criminal or civil proceeding,

unless the information is obtained pursuant to the authority of a search warrant, or unless the

information is otherwise obtained in a manner that is consistent with state and federal law.”30

27 Fed. R. Evid. 402. 28 Fed. R. Evid. 403. 29 Fed. R. Evid. 901; 1002; 1007. 30 I.C.A. § 808.15.

7441946.2

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Florida disallows law enforcement officers and private citizens from operating drones over other

people’s property under certain circumstances.31 Florida provides the property owner with a

statutory “civil action” if unlawful drone surveillance occurs.32 Notably, though, Florida seems

to limit the use of the unauthorized drone footage only at criminal trials, not in civil cases.33

Illinois directs that if a court “finds by a preponderance of the evidence that a law

enforcement agency used a drone to gather information in violation of the information gathering

limits34…, then the information shall be presumed to be inadmissible in any judicial or

administrative proceeding.”35 Indiana provides that drone footage unlawfully obtained36 by law

enforcement is “not admissible as evidence in an administrative or judicial proceeding.”37

Nevada excludes from evidence at any “judicial, administrative or other adjudicating

proceeding” drone footage acquired by a law enforcement agency unlawfully.38 Oregon’s,

Vermont’s and Virginia’s evidentiary statutes likewise exclude the information from evidence in

any proceeding.39 40 41

Some states just preclude the use of UAV footage in criminal cases. In any prosecution

in Montana, “information from an unmanned aerial vehicle is not admissible as evidence unless

the information was obtained pursuant to the authority of a search warrant or in accordance with

31 F.S.A. § 934.50(3). 32 F.S.A. § 934.50(5). 33 F.S.A. § 934.50(6): “Evidence detained or collected in violation of this act is not admissible as evidence in a criminal prosecution in any court of law in this state.” 34 725 ILCS 167/10; 725 ILCS 167/15. 35 725 ILCS 167/30. 36 IC 35-33-5-9. 37 IC 35-33-5-10. 38 N.R.S. 493.112(4). 39 O.R.S. § 837.310(2)(a): “not admissible in, and may not be disclosed in, a judicial proceeding, administrative proceeding, arbitration proceeding or other adjudicatory proceeding.” 40 20 V.S.A. § 4622(e) “inadmissible in any judicial or administrative proceeding.” 41 Va. Code § 19.2-60.1(E) “not admissible in any criminal or civil proceeding.”

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judicially recognized exceptions to the warrant requirement.”42 North Dakota has a similar

statute.43

42 MCA 46-5-109(1). 43 NDCC, 29-29.4-02(1).