July 07, 2015      

A new law took effect in Florida on July 1, clarifying the state’s rules for aerial drones with the intention of protecting privacy. It defines technological terms, specifies exemptions from certain bans, and provides terms for seeking civil damages. However, some observers say the law could lead to frivolous lawsuits.

In 2013, Florida’s Freedom From Unwarranted Surveillance Act prohibited law enforcement agencies from using drones to gather evidence, unless they had a search warrant, there was a threat of terrorist attack, or there was “imminent danger” to lives or property. The act’s language defined the term drone and included fish and game agencies.

The 2015 bill, which was signed into law by Florida Governor Rick Scott in May, defines “image,” “imaging device,” and “surveillance,” and it prohibits the use of drones to record a person or private property without written consent. It allows exemptions for “reasonable tasks” for business purposes such as delivering cargo (if approved by the FAA), as well as for tax assessment and utility and environmental mapping. These uses were previously omitted.

However, the amended law has a broad enough definition of “surveillance” that people could sue even if they or their property is merely in the background of a photo taken by a drone. The right to privacy could be mistaken for the right to sue drone operators.

Drone legislation across the U.S.

Click to enlarge.

“The definition of surveillance doesn’t only mean spying on someone,” wrote lawyer Steven M. Hogan on PropertyCasualty360.com. “It includes any picture taken with ‘sufficient visual clarity’ to identify property or a person. That’s a pretty basic capability. Anyone who takes a picture or video with a small UAS platform equipped with an ‘imaging device’ with ‘sufficient visual clarity’ to identify a particular house may potentially violate the statute.”

“This new and unprecedented definition is going to lead to court battles that may continue for years,” he said.

Another unintended consequence of the Florida law is that prohibiting surveillance could also infringe on journalists’ First Amendment right to gather news. Costly and time-consuming lawsuits could make reporters more reluctant to use drones.

“I can put up a drone offshore to watch an oncoming hurricane, a significant news event, but if that drone captures the property of a homeowner on the beach who is not home, and that homeowner can sue that outlet, that’s a significant constitutional problem,” media attorney Chuck Tobin told Florida Politics.

In addition, a key provision states that the winner in civil suits around the act can get attorney fees as part of any compensation:

“The owner, tenant, occupant, invitee, or licensee of privately owned real property may initiate a civil action for compensatory damages for violations of this section and may seek injunctive relief to prevent future violations of this section against a person, state agency, or political subdivision that violates paragraph (3)(b). In such action, the prevailing party is entitled to recover reasonable attorney fees from the nonprevailing party based on the actual and reasonable time expended by his or her attorney billed at an appropriate hourly rate and, in cases in which the payment of such a fee is contingent on the outcome, without a multiplier, unless the action is tried to verdict, in which case a multiplier of up to twice the actual value of the time expended may be awarded in the discretion of the trial court.”

Thus, plaintiffs can sue drone operators with the expectation that they do not need to pay their lawyers if they win. Challenges and refinements to the Florida law are likely.

So is this law a victory for the right to privacy and against unwarranted surveillance, or does it have enough holes for the government and business to still do what they want and for the freedom of press to be chilled by threat of lawsuits? Do existing Peeping Tom laws do enough to protect privacy, or are piecemeal state regulations more harmful to hobbyists and their potential subjects?