Just What is a Reasonable Expectation of Privacy?

By Kevin Pomfret, PDC General Counsel.

Some legislation would make it illegal to take an image in violation of an individual’s reasonable expectation of privacy.

One of the major challenges with this type of UAS privacy legislation will be understanding what is an individual’s “reasonable expectation of privacy” when in public.

Historically, courts have found that any expectation of privacy that an individual has to not be imaged in public from overhead by an aircraft was unreasonable unless they have taken measures to not be seen from above. While many of these cases applied to the government’s collection of such images, the analysis and concept has been more broadly applied. For example, in Dow Chemical Co. v. United States, the Supreme Court found that the Environmental Protection Agency was justified to overfly a facility and collect evidence without a warrant. Similarly, in California v. Ciraolo, the Court held that data obtained from an aircraft hired by the police to fly over a private home without a warrant could be used in a trial. Specifically, the Court found that, “[i]n an age where private and commercial flight in the public airway is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed by the naked eye.”

In Ciraolo, it is worth noting that the Court found that the aircraft was flying at approximately 1000 feet. Three years later, in Florida v. Riley, the Court affirmed this reasoning, stating that a warrant was not needed to fly a helicopter at 400 feet over a home to collect information. The Court noted that a member of the public could have operated a helicopter at 400 feet and made the same observations and that the helicopter did not interfere with the normal use of the property.

However, this principle seems to be evolving, due in large part to privacy concerns associated with UAS. For example, in May 2016, the National Telecommunications and Information Administration (NTIA) published the Voluntary Best Practices for UAS Privacy, Transparency and Accountability (the “Voluntary Best Practices”). The Voluntary Best Practices were the result of a multi-stakeholder (including representatives from industry, academia, and civil liberties organizations) that was convened at the direction of the White House to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private use of UAS. The Voluntary Best Practices are intended to protect “covered data”, which is defined as “information collected by a UAS that identifies a particular person”. Section 2a of the Voluntary Best Practices states that:
[i]n the absence of a compelling need to do otherwise, or consent of the data subjects, UAS operators should avoid using UAS for the specific purpose of intentionally collecting covered data where the operator knows the data subject has a reasonable expectation of privacy.

It is important to note that the Voluntary Best Practices do not exclude the collection of covered data of an individual while that person is in public. Moreover, it was evident from the discussions that occurred in the meetings that many stakeholders did not feel that it was unreasonable for a person to expect not to be imaged by a UAS in public.

Similarly, a Florida law passed in 2015 to address privacy concerns associated with UAS states in part that:
… 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.

As a result, if a person in Florida takes steps to avoid being seen from the road (i.e., a fence), he or she has a reasonable expectation of privacy to not be imaged by a UAS operating overhead. This grants Florida citizens even greater protection than afforded by the Supreme Court in Dow Chemical and Ciraolo.

Analysis: Legislation that precludes UAS operators from collecting images of an individual if he or she has a reasonable expectation of privacy will prove the most challenging for insurance companies. Operators will first want to determine whether the legislation applies to them, as it may only apply to government use of UAS or have carve-outs, such as in Florida. Businesses will also need to determine if and how a “reasonable expectation of privacy” is defined in the legislation. If it is not defined, operators will need to closely follow applicable court cases, as what is considered reasonable likely will evolve.

Kevin Pomfret is a thought leader in geospatial technology with almost 30 years of experience. He brings valuable insight to companies that both generate and use geospatial technology and data. His service in the U.S. government and knowledge gained in private practice enable him to provide comprehensive advice to businesses and governments on the risks and opportunities associated with the fast-growing area of location-based technology and Big Data. Follow Kevin on Twitter: @kpomfret 

Author’s Note: This article contains general, condensed summaries of actual legal matters, statutes and opinions for information purposes. It is not meant to be and should not be construed as legal advice. Individuals with particular needs on specific issues should retain the services of competent counsel.