Drone Intrusion Part 1: What are my rights?

Drone privacy trespassBy Paul Fletcher.

I was recently staying down south at a friend’s secluded property – delightful solitude from all urban traffic and other noise. The loudest sounds were the tumbling notes of happy birds and the scratching of chooks in the garden. The nearest neighbour was safely out of eye sight and earshot. The most activity on display was the odd wispy cloud moving at a meditative pace – you get the picture: peaceful.

Until, that is, something happened that I have never before experienced. A drone entered the scene from stage left like a demented blowfly, stopped and hovered about 30 metres above the front garden – buzzing and staring at us.

It is difficult to convey the thoughts and emotions that flooded into my mind. First, briefly, surprise and mild shock that this was happening, this instant destruction of my sense of blissful co-existence with my surroundings. A noisy device had intruded – and it was watching me! The blue wrens had scattered in silent alarm. The chooks were now gazing upwards, alert. My mouth was no doubt hanging unattractively open, as you see in photos of witnesses when the inevitable happens at one of those air shows.

Then: a sense of outrage. What the hell! Then, a waving of arms in that internationally recognised signal for “off you go please”. It didn’t. It just hung there brazenly buzzing, observing and, fundamentally, intruding.

Then: confusion. How can I stop this? How do I get it to go away? It’s too high to throw a rock at. I don’t have a shotgun, but if I did… now, hang on. Even if I did have a gun, to fire at the thing would not only be dangerous but clearly illegal.

If I had my own drone perhaps I could send it up as an interceptor – to shepherd the thing out of my air space: like fighter planes of opposing powers over the Kamchatka Peninsula – a parody of an “international incident” played out in a minor key over Margaret River.

No, I couldn’t even do that, even if I did have my own version of the airborne pest. What if the drones were to collide and someone, or some property, on the ground was injured? What right did I have to damage the drone, which was the property of someone else, just because it was trespassing on “my” (i.e. my friend’s) property?

As a lawyer I am expected to know better than anyone that you cannot meet a wrong done to you by doing a wrong back. So I couldn’t shoot it, intercept it, throw rocks at it. In short I couldn’t do anything immediately at all to stop this outrage.

My powerlessness had a lot to do with my location and the laws of Western Australia. If, for example, I was living in Kentucky USA, I would probably own a shotgun and maybe even carry it with me at all times – in which case I could, apparently, have lawfully blasted the object out of the sky. I say “apparently”, because it has been reported that, in July 2015 in Louisville Kentucky, one William Merideth, 47, did exactly that to his neighbour’s drone – because it was spying on his 16 year old daughter while she was sunbathing by the pool. Charges against him were dismissed with the judge ruling that he had “a right” to shoot down the drone.

Some groups are developing practical measures to capture trespassing drones. A patent in the USA has been applied for to cover “drone catcher” technology that involves using a drone equipped to shoot a net over another drone being operated illegally, to capture it and return it to the ground.

I have also read a report about a group in Scandinavia training eagles to drop out of the sky onto drones in flight, capturing them in their talons and returning them to the eagle’s handler. That report may have been published on April 1st.

The serious issue here though is: what can you do, in Western Australia, if your property and privacy is invaded by an unmanned aerial vehicle (UAV) i.e. a drone. What protectable rights of yours, if any, are being infringed and what can you do about it?

Trespass, in relation to land / buildings, is the entry onto the property of another by someone without permission or other lawful excuse. One problem of course is establishing whether the drone is in fact trespassing. The first question to be addressed is whether entering the air space above your property is an intrusion on your property i.e. do you own the airspace above your land / building and if so to what height?

The second question is whether the intrusion is unlawful i.e. is the drone being operated by or on behalf of the police or local government or some other government authority under a law which permits such surveillance?

Surveillance in our society is now a fact of life. CCTV cameras record our movements in public places – street, train stations etc. That surveillance is protected by the law – you have no such right to privacy as would entitle you to demand that you not be observed or recorded in a public space.

The owners / operators of private properties and buildings can be entitled to observe and record your movements as a condition of permission for you to enter those places.

In Australia, there has not, as far as I am aware, yet been any legislation passed permitting law enforcement or other agencies to operate, without a warrant or an emergency, surveillance drones over private property at a height low enough to intrude on the airspace considered to be “owned” by the property owner. But such laws may not be far away. It is easy to imagine the convenience for local governments of being able to conduct property inspections remotely by using a drone. In rural and semi-rural areas they could check whether fire breaks have been cut, whether the obligatory annual clearing of combustible material from around houses and out buildings has been performed, whether prohibited weeds are present in pastures etc.

In suburban and urban areas they could check whether fences and gates around pools are intact, whether planning laws and building permits have been complied with etc.

In the USA the question whether aerial surveillance by police without a warrant, using a helicopter hovering 400 feet above private property infringes the Fourth Amendment to their Federal Constitution (which prohibits unreasonable searches and seizures), arose in the case of Florida v Riley 488 US 445. A majority of the judges of the Supreme Court ruled that the intrusion was lawful because the Federal Aviation Authority (their equivalent of our Civil Aviation Safety Authority – CASA) regulations did not require helicopters to maintain a height of not less than 500 feet – which was the rule applied to fixed wing aircraft. The court reasoned that if any member of the public could legally fly a helicopter at that height over someone’s land, the police officer’s observations were conducted from “a public vantage point” and therefore did not constitute a search under the Fourth Amendment.

The dissenting judge, and this was 27 years ago, before modern drones, made some prescient observations:

“imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generating any noise, wind or dust at all…suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses, but also what books they were reading and who their dinner guests were.” (emphasis added)

Well that “miraculous tool” now exists: the drone – although the one I experienced did not have the attribute of silent operation.

If laws are now written permitting intrusion, as a norm, upon the low altitude airspace above private property, one aspect of the dystopian societies that various science fiction writers long ago foresaw, and the degree of surveillance of us in private places so disturbingly described in George Orwell’s “1984”, will be a part of our lives.

So, to return to the Margaret River case study I started with, assuming that the drone hovering intrusively and shattering the peace and tranquillity of the setting is not being operated as permitted by law, by or on behalf of the Shire of Margaret River, the CSIRO, the State or Federal Police or some other authority:

  1. What rights, if any, of the property owner / occupier or guests are being infringed?; and
  2. What can be done to stop or otherwise remedy the infringement?

The first relevant right is the right to not have another commit trespass on your property. But how much, if any, of the airspace above your land is your “property”?

The original common law concept was that your aerial rights extended indefinitely above your land. However the present law in Australia is, subject to any challenge to the correctness of the 1991 decision in Bendal Pty Ltd v Mirvac Project Pty Ltd [1991] 23 NSWLR 414 – 470 and Perilya Broken Hill Limited v Valuer General [2015] NSWLEC 43 both of which applied the English 1978 decision in Bernstein v Skyview & General Ltd [1978] [1], that a surface owner’s rights in the airspace above should be restricted “to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it” [2].

Well then, how high is that? The answer is: it is not clear, in Australia, what that limit is. One expert commentator has suggested that the right is unlikely to extend much more than 200 metres above roof level: Gray “Property in Thin Air” [1991] CLJ 252-254.

Based on this analysis of the law it seems safe to conclude that hovering a drone 30 metres above a private property, is, unless otherwise authorised by law, the commission of the tort of trespass.

Does it also involve an actionable breach of an individual’s right to privacy? – particularly if it is equipped with a camera and is observing / recording persons on the land below? That question will be the subject of a further article.

Other rights might also be infringed e.g. the right to not be subjected to nuisance [3], the right to not be stalked. However the primary infringement is probably trespass.

Given that the drone, or its operator, is committing trespass, what can be done about it? Theoretically, plenty. Practically, probably not much as things currently stand.

Assuming that the identity of the operator is known, then an injunction granted by a court to restrain that operator from repeating the trespass is the most obvious remedy. But how does one readily identify the operator? In my case the drone, after about 5 minutes hovering and, presumably, filming us standing below gesticulating at it, disappeared in a series of rapid zigzags beyond the tree-line. I had no idea, and no practical way of establishing, who was operating the drone.

Therefore a suggestion: every drone made available for sale in Australia should be required to be equipped with a device that emits an identifying signal that can be read by an app downloadable to any mobile phone. The signal must be embodied in the drone’s operating system like a car immobiliser so that it cannot be disconnected or bypassed. The identifier must be linked to the registered owner / operator who at law must be made liable for any infringement of the rights of others that occur via use of the drone – whether it be trespass, invasion of privacy or damage to person or property, or anything else. In other words, an electronic number plate for drones.

The app could record the drone’s registration number and potentially proximity, plus the time, date and location. In-app mobile phone footage of the intrusion / incident would also be useful. This could present a practical and enforceable deterrent to a scourge that I fear is real and rapidly approaching.

Even better, though more difficult, would be if drones were required to have a “black box” as well as GPS and the usual smartphone sensors, then the black box could continuously record the drone’s location, height, direction, angle, the time and whether video or photography was being taken. With an internet connection the black box could, perhaps, reside in “the cloud”.

The consequences of taking video or photos while trespassing would obviously be more serious. If the black box records that video or photography was activated at the relevant time, then the burden of proving that the video / photography was legal could fall on the accused – ie guilty until proven innocent.

If, as with a motor vehicle, the drone operator / owner can be prosecuted and the drone confiscated, then, particularly if the law is written such that the punishment includes an enforceable injunction preventing the owner / operator from repeating the intrusion, a practical and workable remedy for property owners / occupiers / guests whose rights are infringed may be made available.

The law would also need to provide that, in certain circumstances, the persons whose rights have been infringed by the activities of the drone can access details of the registered owner / operator (and any black box data) in order to pursue a civil action for damages. It is not hard to think of situations where a damages claim could arise. Imagine a drone losing control while, uninvited, filming a wedding and crashing into the proceedings, ruining the day for all and causing significant financial loss. Consider the recent case of an out of control drone that hit a triathlete competing in a race, injuring her.

Just as with the owners and operators of motor vehicles, ideally the owners and operators of drones must be held accountable for complying with the laws, once they have been written, and for loss and damage caused by their non-compliance.

Whether my solutions are technically feasible, or whether there are better / simpler solutions, remains to be seen. In any event, regulatory change seems necessary. For example, the Surveillance Devices Act (WA) does not appear to be equipped to deal with drones scrutinising activity outside a building [4]. Overall “an examination of pre-existing laws shows them to be ill-fitted to the need, and capable of providing relief in only rare circumstances” (Roger Clarke: “The Regulation of the Impact of Civilian Drones on Behavioural Privacy” 2014).

Regulatory change must occur otherwise it will not only be a matter of “Big Brother is watching you” but so too the voyeur in the next street with their new toy.

Part 2 of this series will consider the privacy implications of the drone intrusion.

 

[1] QB 479. Cited with approval by the High Court of Australia in 2002 in Western Australia v Ward 213 CLR 1 at 273 per Callinan J.

[2] Griffiths J stated: “(the plaintiff) relies on the old Latin maxim…a colourful phrase often on the lips of lawyers since it was first coined by Accursius in Bologna in the 13th century…if applied literally it is a fanciful notion leading to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburban garden”.

[3] “The present action is not founded in nuisance for no court would regard the taking of a single photograph as an actionable nuisance. But if the circumstances were such that a plaintiff was subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity, I am far from saying that the court would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief” (emphasis added). Per Griffiths J., in Bernstein v Skyview.

[4] The definition in the Act of an “optical surveillance device” covers any device capable of being used to record visually or observe a private activity. This definition would capture drones equipped with cameras. However the definition of “private activity” is an odd one and leaves a lot of room for argument as to whether it would extend to any activities out of doors.

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