Over the past few years, journalists increasingly have become interested in operating unmanned aerial systems – better known as drones – to report the news. Some media organizations have predicted that drones “will be used to help journalists obtain footage despite obstructions, safety concerns, police restrictions, or hazardous environments, improving their ability to report on fires, accidents, weather conditions, natural disasters, and construction sites.” Brief of News Media Amici in Support of Respondent Raphael Pirker, Huerta v. Pirker, NTSB No. CP-217, pp. 12-13 (citing Mickey H. Osterreicher, Charting the Course for the Use of Small Unmanned Aerial Systems in Newsgathering (2014)).
Together with this optimism, journalists should be mindful of the legal implications of operating such technology. Importantly, up to this point, so-called “journo-drones” have been grounded by the Federal Aviation Administration, which has extended its general policy prohibiting commercially-operated drones to journalists. Last year, the FAA even dissuaded a newspaper here in Dayton, Ohio from posting drone footage of a downtown fire on its website that was provided by a non-commercial hobbyist. Tristan Navera, Why you won’t see drone footage from downtown fire on our site, Dayton Business Journal (Apr. 4, 2014).
The legal landscape for drones, however, is rapidly changing. In recent weeks, the FAA has moved toward clearing commercial drones for takeoff, consistent with the agency’s mandate to integrate drones into U.S. airspace. Section 332, FAA Modernization Act of 2012, Pub. Law 112-95. The FAA has proposed regulations that would allow the commercial operation of small drones under relatively permissive rules, including without a pilot’s license and for flights up to 500 feet above ground level. In addition, the FAA has eased restrictions on flights authorized under its Section 333 exemption, which allows limited commercial operation of drones under existing regulations.
Although these developments are good news for journo-drones, journalists seeking to harness drones still face a growing patchwork of state laws that may limit where journo-drones operate and what information they may collect. Although these laws provide strong support for individual property and privacy interests, they often fail to consider the legitimate interest of the press in gathering news under the First Amendment. Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. Ct. 2646 (1972) (recognizing that “without some protection for seeking out the news, freedom of the press could be eviscerated”).
In 2014 alone, at least 35 states debated legislation that would limit drone use. Many of the bills dealt with drone use by law enforcement, but some were vague enough to affect journo-drones. For example, Louisiana and Tennessee criminalized the use of drones to conduct certain “surveillance” activities without the prior consent of the target. La. Rev. Stat. § 15A-300.1(b)(2); Tenn. Code § 39-13-903. Neither statute defined “surveillance.” Similarly, North Carolina has prohibited the use of drones to “[p]hotograph an individual, without the individual’s consent, for purpose of publishing or otherwise publicly disseminating the photograph.” N.C. Gen. Stat. § 15A-300.1(b)(2). Although the statute ostensibly does not apply to “newsgathering,” it is unclear how broadly that exception will be applied.
Using a different approach, California recently expanded its civil claim for “constructive invasion of privacy” to hold liable anyone who attempts to capture footage “in a manner that is offensive to a reasonable person * * * of the plaintiff engaging in a private, personal, or familial activity, through the use of any device” – including drones – “regardless of whether there is a physical trespass” when that footage could not have been obtained “without a trespass unless the device was used.” Cal. Civ. Stat. § 1708.8(b). Rather than dealing with First Amendment concerns head-on, the legislature left courts to decide when drone-based reporting is “highly offensive to a reasonable person.”
Aside from these new statutes, journalists also should remain mindful of traditional common law claims that may be applied to drones. For example, the law of trespass protects landowners from flights by aircraft above their property if “(a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes substantially with the other’s use and enjoyment of his land.” Restatement of the Law, Torts 2d, § 159(2). In addition, a nuisance claim may be brought when a person’s conduct constitutes “an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.” Restatement of the Law, Torts 2d § 822. Finally, landowners and non-landowners alike may bring claims for invasion of privacy, like intrusion upon seclusion and publicity given to private life. Restatement of the Law, Torts 2d § 652B and 652D. As with California’s statute, those privacy torts turn on whether an intrusion is “highly offensive to a reasonable person” and, of course, a court’s interpretation of that element.
Given these developments, journalists have reasons to be optimistic that journo-drones soon may take flight, but concerned that their use of drone technology may be hampered by state laws that have not adequately protected their First Amendment interests. However, as noted above, this area of the law is rapidly changing, and journalists should keep up to date on the latest news from legislatures, courts, and the FAA before reporting the news by drone.