Is drone use becoming constitutional issue?

From the editor's desk

After receiving complaints about drones — remote controlled unmanned aircraft — flying around village neighborhoods, Newton Falls council began considering legislation to limit where drones may fly and take photos.

Councilman Tarry Alberini cited three complaints about drone use in the West Broad Street area, and Councilman Phillip Beer raised concerns about residents flying drones near houses, wondering if they were being used to photograph people inside.

“There are some people who do not like drones around their homes,” Beer said.

OK, I get that. But some of the limitations council is considering have nothing to do with residential neighborhoods. Rather, the legislation focuses largely on banning drones in “airspace above or adjacent to any public park, school, municipal building, or any other property owned or used by … any other public entity.”

Funny, I thought public space is, well, public.

Are drones flying around in such abundance that mid-air collisions are occurring? Are they invading privacy by hovering outside bedroom windows? Are they daringly diving onto the heads of unsuspecting residents?

If they are, my news staff must not be doing their jobs because I haven’t read about any of that in the Tribune Chronicle.

So I ask again: why is council targeting the village’s public areas for drone removal?

Now, there is another section in the legislation banning unmanned aircraft from recording images on city-owned property “or 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 in violation of such person’s reasonable expectation of privacy without his or her written consent. …”

And just like that, Newton Falls council may have dived into the murky world of constitutional law.

The U.S. Supreme Court uses a legal test to determine “expectation of privacy” to help define when Fourth Amendment privacy protections apply. Journalists generally apply that rule by noting that there is no reasonable expectation of privacy in a public place. That is, if you are visible in public, then photographers may snap your photo and publish it with no need for permission. It’s NOT an invasion of your privacy, the high court has determined.

So, if a Tribune Chronicle photographer is standing on a public street, shooting photos of a man who, while standing on his private property is clearly visible from the public thoroughfare, that man would have little right to demand that my photographer leave or stop snapping photos.

Language in the Newton Falls’ legislation goes on to explain 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 otherwise have a legal right to be, regardless of whether he or she is observable from the air with the use of an unmanned aircraft system.”

That may sound reasonable, but where does it end? What if an airplane flies overhead and a passenger takes a picture with a telephoto lens? Is that a violation of that resident’s reasonable expectation of privacy?

There was a chemical spill on private property in Weathersfield last week, and some local media used drones to obtain video footage. Under the Newton Falls legislation, that would have violated the landowner’s right to privacy. But is it, really? Doesn’t the public’s right to know, in that case, outweigh a property owner’s right to privacy?

As a journalist, I say absolutely! But I suspect in the end, only a legal challenge posed in federal court may answer that question.

In the meantime, Newton Falls council will host a public hearing and second reading on the legislation Aug. 20, after returning from summer break.

That should give them plenty of time to rethink their approach to drones.

blinert@tribtoday.com

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