New Florida Drone Privacy Law Could Trigger Litigation Wave

By Carolina Bolado

Law360, Miami (May 15, 2015, 4:31 PM ET) — A drone privacy bill signed into law Thursday by Florida Gov. Rick Scott that bans drone surveillance of private people without their consent could create a wave of litigation for insurance and construction companies that use drones for aerial surveying and trigger First Amendment challenges from news organizations. 
Scott signed S.B. 766, dubbed the Freedom from Unwarranted Surveillance Act, which last month passed both houses of the state Legislature with broad support. The new law creates a private right of action for people who claim they have been photographed by drones against their will while in their homes.

The law even bans police surveillance without a warrant, while allowing for commercial use for licensed professionals, among others. The law’s language bars “a person, a state agency or a political subdivision from using a drone to capture an image of privately owned real property or of the owner, tenant, occupant, invitee or licensee of such property with the intent to conduct surveillance without his or her written consent if a reasonable expectation of privacy exists.”

People have reasonable expectations of privacy on their own real property if they can’t be observed by people located at ground level, according to the law.

The statute could create problems for companies legally using drones within the limits of the law — for example, an insurance company surveying damage after a hurricane or a developer surveying a construction site — in dense urban areas where they might accidentally snap a shot of someone in a high-rise condominium, according to Zachary Ludens of Carlton Fields Jorden Burt LLP.

The law allows those whose photos were captured by a drone when they had a reasonable expectation of privacy to sue for injunctive relief and compensatory and punitive damages, Burt said. Though the law defines this reasonable expectation of privacy to a certain extent, it still is vague enough that he expects the courts will have to determine through litigation exactly what this means, he said.

“The legislative history doesn’t really speak to what is the reasonable expectation of privacy other than creating the presumption that if you’re in your house and can’t be seen on the street, you have an expectation of privacy,” Ludens said. “Do they turn to the Fourth Amendment criminal reasonable expectation of privacy, or do they develop a new test?”

Beyond the reasonable expectation of privacy, the courts will also have to determine whether companies using these drones are performing reasonable tasks in relation to a licensed, allowed activity from the state.

The law allows for commercial drone use by licensed people and businesses, but only “within the scope of practice or activities permitted under such person’s or entity’s license.” The bill explicitly prohibits use by private investigators and others whose licensed profession includes obtaining information about people. Other exceptions are for property tax valuation and for inspection of electric, water and natural gas utilities as well as aerial mapping and cargo delivery.

“Think of a nationally chartered bank,” Ludens said. “Is it reasonable for them to want to use a drone to check out a property that is going into foreclosure? We can sit here and say that that’s reasonable and that’s related, but that doesn’t mean that someone’s not going to bring a lawsuit against them.”

The law could also affect movie or television studios that want to use drones to film aerial shots of densely populated areas, such as downtown Miami or Miami Beach, he said. To avoid any potential litigation, the studios would have to seek the consent of every resident in every high-rise building in the area before filming.

So far, these scenarios are purely hypothetical, as companies have not yet begun using drones for these purposes because the Federal Aviation Administration has not yet come out with final regulations on drone use. But Ludens said those likely would come out in the next year.

“This Florida statute might be putting the cart before the horse, but the wheels are in motion to make it much more realistic to use drones,” he said. “The applications for drones could be boundless.”

Among these applications is the use by media organizations for newsgathering purposes. But the Florida law makes no accommodation for the press’s right to gather information and the public’s right to receive it, according to Chuck Tobin of Holland & Knight LLP.

“From a First Amendment standpoint, it’s a bad bill,” Tobin said. “Under Florida’s bill, if you put up a drone in a public park and catch images of a nearby home, the homeowner can sue the journalists. That’s a serious problem for any realistic newsgathering scenario.”

Tobin gave the example of a hurricane bearing down on Biscayne Bay in Miami, a densely populated area. A media organization could put a drone 100 yards offshore to get images of the coming storm, but would risk litigation because it could inadvertently snap shots of people in their homes.

“Change the facts and you’re flying a helicopter, and the same images are completely lawful,” he said. “That just makes absolutely no sense.”

Tobin worked with the Florida Press Association during the legislative session to try to persuade the bill’s sponsors to add an exception for ordinary newsgathering, similar to one in North Carolina’s drone law, which states that the provisions of the law do not apply to ordinary newsgathering or to events open to the public. But the legislators declined to accept that language, according to Tobin.

Thus far, drones have been used sparingly by media organizations because of the strict regulations currently in place, according to Tobin. To fly drones themselves, news media organizations need an exemption from the FAA, but so far none has received one, he said.

So they often contract with private photography companies that have received exemptions, but it is an expensive process, according to Tobin.

“It’s not a practical newsgathering tool until the regulations become less restrictive,” he said.

Tobin’s clients are all legacy media organizations, such as The New York Times, ABC News and Scripps, with established records of responsible and safe practices. Proponents of the law worry that less-savory media outlets, such as paparazzi, could use a potential newsgathering exemption to invade the privacy of others, but Tobin noted that Florida already has a number of privacy, nuisance and trespass laws that apply to people, helicopters, cameras and others, and would apply to drones.

“There already exist lots of remedies for people who are victimized by bad actors,” he said. “Let’s not legislate to the lowest common denominator. That’s not how you’re supposed to do it under the First Amendment.”