By Angela M. Jones and Mark J. Schocke
About a year ago, my (Jones’) husband and I elected to enjoy a nice, quiet, private glass of wine on our back deck after an hours-long struggle getting our newborn to sleep for the night. It was an exceptionally dark night and you could see the stars easily. What you could also see was a strange object hovering not more than 15 yards in front of our deck recording us with its creepy lens-eye. It was a drone. I immediately felt violated and my husband, angry. He remarked, “You’re the lawyer, what would happen if I destroyed that thing?” That got me thinking, what would happen? Isn’t this drone violating my privacy? How often is it there, peering into my windows?”
First things first, what is this thing? Personal drones (aka multirotors or unmanned aerial vehicles) are not necessarily a new invention but, like many other novelty tech items, they have recently exploded into the mainstream: the availability is going up and the price is going down. (You can buy a drone for $75.) Given the growing popularity, the Federal Aviation Administration has asserted some jurisdiction over these unmanned craft. The regulations for commercial drone operators can be found at 14 CFR Part 107 and the hobbyist regulations can be found at Public Law 112-95, Section 336. Operators are required to register their drone with the FAA if it weighs over 0.55 pounds (according to the FAA, as of February 2016, more than 325,000 people have registered drones). For commercial drones, an operator must obtain a license called a “Remote Pilot Airman Certificate,” pass a TSA screening, and be at least 16 years old. Hobbyists and commercial users must notify airports within a five-mile radius of the drone’s operation, fly only during daylight hours and yield to manned aircraft. Although hobbyists must keep their drones within their line of sight while operating, commercial operators can operate at an altitude of 400 feet.
Commercial drone use may eventually expand to the Amazon.com vision of unmanned drones delivering packages from distribution facilities directly to a consumer’s home; however, currently the most common uses are aerial photography for realtors and property appraiser, land surveying and roof inspections. For example, many insurance carriers and homeowners have begun to use drones to photograph and assess alleged wind and hail damage to roofs following severe weather. Several commercial drone companies cater to this niche industry by offering infrared camera views that are able to identify otherwise unobservable damage. I (Schocke), in the course of handling hail damage claims on behalf of insurers, have begun to notice plaintiffs attempting to use this kind of evidence in insurance appraisal actions.
But what about that pesky drone hovering over your personal space and peeking in on you? The FAA does not appear to be taking a stance on privacy any time soon as they have remarked that the question of privacy should be determined under state law. So where do our state laws stand on privacy issues?
It seems to us that the issue is one of trespass and invasion of privacy. Generally, a party bringing a trespass action in Indiana must establish two elements: (1) that he possessed the land when the alleged trespass occurred, and (2) that the alleged trespasser entered the land without a legal right to do so. This begs the initial question then, how much of the air above your home do you possess? Before commercial aviation, landowners could be said to own up to the heavens (“ad coelum et ad inferos”). Today, the federal government considers the area above 500 feet to be navigable airspace. This is a useful guideline for trespassing cases although the Supreme Court has not expressly accepted these parameters. In the alternative, to establish a claim for invasion of privacy by intrusion, a plaintiff must demonstrate that there was an “intrusion upon his or her physical solitude or seclusion, as by invading his or her home or other quarters.” Again, the key ingredient here is whether the airspace above your home is considered “other quarters.” No Indiana cases address these issues.
The lack of caselaw and federal regulation on the issue makes any claim against your invading drone quite nebulous; however, we have to start somewhere. In July of 2015, William Meredith of Hillview, Kentucky, shot down a drone in his backyard and was arrested for first-degree criminal mischief and wanton endangerment. According to Meredith, the drone was hovering over his backyard, which included a pool and six-foot privacy fence. As the father of a 16-year-old girl who used the pool, he asserted in his defense he felt threatened that the drone was invading his private space. All charges were dismissed in October of 2015.
Although Meredith was successful in defending himself, there are provisions within the Federal Code (18 U.S.C. § 32) that prohibit the willful destruction of aircraft while in flight, providing penalties for up to a 20-year prison sentence. So, do we recommend you shoot it down? No. Instead, call the authorities, investigate the drone’s source/owner and file a claim against the owner for trespass and invasion of privacy. Be the pioneer in Indiana drone law and let us know how it goes.•
Angela M. Jones is an attorney with O’Neill McFadden & Willett LLP in Schererville. Jones can be reached at firstname.lastname@example.org or 219-322-0450. Mark J. Schocke is an attorney with Kightlinger & Gray LLP in Merrillville. He focuses his practice on the defense of complex litigation including complex professional negligence, transportation, construction and product liability law. The opinions expressed are those of the authors.