Making it Illegal to Conduct Surveillance

by Kevin Pomfret, PDC General Counsel.

Another type of legislation makes it illegal to use UAS to conduct surveillance.

One of the biggest challenges with this type of legislation for an operator will be knowing what constitutes surveillance within a jurisdiction. For example, the Florida law referenced above prohibits the use of UAS to:
use a drone equipped with an imaging device to record 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 on the individual or property captured in the image . . . . (Emphasis added.)

Surveillance is defined in the law as:
1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient clarity to be able to obtain information about their identity, habits, conduct, movements or whereabouts, or

2. With respect to privately owned real property, the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

Fortunately, the Florida law contains a number of exceptions from the broad surveillance ban. These exceptions include the use of a UAS (i) by a person or business licensed by the state, (ii) by an employee or contractor for assessing property for ad valorem taxation, and (iii) for aerial mapping. Without these exceptions, the use of UAS for inspections of property in Florida would likely be prohibited as it would constitute “the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.”

North Dakota also recently enacted a law prohibiting the use of UAS for “domestic surveillance”. Specifically this law, passed in 2015, states:
[a] law enforcement agency may not authorize the use of, including granting a permit to use, an unmanned aerial vehicle to permit any private person to conduct surveillance on any other private person without the express, informed consent of that other person or the owner of any real property on which that other private person is present.

On its face, this law seems to apply only to those operators who need approval from law enforcement to conduct surveillance in North Dakota, such as private investigators. However, it is written so broadly that it could be interpreted to apply to using UAS for any surveillance.

In New Hampshire, legislators introduced a bill that would have prohibited the non-governmental use of drones to conduct surveillance without an individual’s permission. The legislation stated: “[n]o person shall use a drone to conduct surveillance without the prior consent of each affected person and each owner or possessor of affected buildings or structures or parts thereof .” Though the bill was defeated, it further exemplifies legislators’ attempts to limit or even prohibit the use of UAS to conduct surveillance by those outside of the government.

Analysis: Insurance companies that use drones to inspect property are likely to face several challenges in jurisdictions that prohibit the use of UAS for surveillance. One of the biggest challenges may be understanding what constitutes surveillance in a jurisdiction, as the term “surveillance” is quite broad. Operators should seek to have the term clearly and narrowly defined in the legislation. In addition, the legislation should specifically exclude the use of UAS to inspect property for insurance purposes.

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.