Not all drones constitute privacy invasion

It was clear by the many reader comments posted on the bottom of our story last week that residents are adamantly opposed to a proposed Trumbull County plan to use drones to look for work being done on local homes or other buildings without the necessary building permit.

The idea was to have the camera-carrying unmanned aircraft fly over neighborhoods and homes, record video and save the images to check for signs of illegal building activity.

So, citing privacy concerns, Commissioners Dan Polivka and Mauro Cantalamessa sided with the opponents, and last week they voted down the drone patrol.

Commissioner Frank Fuda argued, however, that the idea should be studied with a trial run.

Certainly, opposition to the idea of photographs being taken from airspace above parcels of private land was strong. Residents took to social media in droves to blast the idea.

Polivka agreed, saying, “I wouldn’t want it in my backyard.”

Few people would.

But here’s some food for thought.

Drone use will continue to grow, and soon, it shouldn’t be a surprise to see the little creatures flying around above your property — legally.

Many communities and organizations have been exploring the issue and creating local laws governing drone use, but at the end of the day, federal government and courts already are providing the necessary guidance on the topic.

Bob Jadloski, a local expert and professional photographer who uses drones to shoot amazing aerial shots of businesses and trains others to do the same, says drones are restricted to heights of 83 to 400 feet. He says that space above private property becomes the jurisdiction of the FAA. And regardless, at that height, the drones really can’t see into windows in the daylight anyway.

“Invasion of privacy is not a concern. At that height, with what your operator would be out there doing, there shouldn’t be any concern,” Jadloski told commissioners during a presentation on the proposal.

Taking that one step further, consider this. If the air above private property is considered to be public, then the same privacy rules governing other public areas like parks, roads or sidewalks also would apply.

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.

Let me explain. If you are visible in public, then photographers may snap your photo and publish it with no need for permission. That simply is 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 that street, the man would have little right to demand that my photographer leave or stop snapping photos.

It stands to reason, then, that the same test could be applied to photos taken by an aircraft — manned or unmanned — flying over private property, provided it remains at FAA-controlled airspace height.

In past weeks, areas of Mahoning and Trumbull county experienced significant flooding. Farmers have been struggling to get their crops planted in fields deluged with rain.

These struggles have been caught on video and shared by area media. Viewers have watched with great interest the news stories showing overhead shots of the flooded areas — much of it private property.

In fact, if that video footage was captured from drones flying at the appropriate height in FAA airspace, then it would be hard to argue that an invasion of privacy had occurred.

Of course, new drone legal challenges to the Fourth Amendment privacy protections may come.

But in the end, and as the journalist that I am, I always will argue in favor of accessibility and the public’s right to know. It will be interesting to see if the courts agree.

blinert@tribtoday.com

COMMENTS