A new Florida privacy law specifically concerning drones took effect on July 1, 2015. The law bans the use of drones to conduct surveillance of private property or its occupants without their written consent. Although the law does not impose criminal penalties on drone operators who violate the ban, they could find themselves defending lawsuits for invasion of privacy.
Freedom from Unwanted Surveillance Act (FUSA)
Passed in 2013, the FUSA prohibits Florida police from using drones to obtain evidence without a search warrant unless there is a credible threat of terrorism or swift action is required to prevent impending danger to life or property. The Florida legislature recently amended the FUSA to prohibit an individual, state agency or political subdivision from using a drone to conduct surveillance of private property or persons located on that property without their written permission under circumstances where they have a reasonable expectation of privacy.
Reasonable Expectation of Privacy
A person is presumed to have a “reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.” In other words, it is not illegal for a drone to take pictures of you in your unenclosed front yard. However, if a drone films you while you are inside your home or sunbathing in your fenced-in backyard, you have a right to sue the drone operator for invading your right to privacy.
The FUSA broadly defines “surveillance” as activities that enable drone operators to observe people and real property with enough visual clarity to determine a person’s “identity, habits, conduct, movements or whereabouts,” or the “unique identifying features or occupancy of the property by one or more persons.” Although the FUSA prohibits drone use with the “intent to conduct surveillance,” the law’s broad definition of “surveillance” would seem to allow a cause of action even if a person or their property is captured unintentionally in the background of a picture snapped by a drone.
The Federal Aviation Administration now requires every owner of a recreational drone weighing between 0.55 and 55 pounds to register their drone no later than February 19, 2016. Individuals who purchase drones after December 21, 2015, must register them before they are launched. Once registered, the drone owner will be given a unique identification that must be displayed somewhere accessible on the drone, though not necessarily externally. Penalties for failing to register include a fine of up to $27,000, or where the drone owner has been found criminally liable, a fine of up to $250,000 and up to three years in prison.
Are Drones Hovering Over Your Private Property and Invading Your Privacy?
Now that the FAA requires drones to be registered, it may be easier to identify and sue drone operators who violate the FUSA. The successful plaintiff is entitled to recover compensatory and punitive damages, attorney’s fees and a court order to prevent future FUSA violations.