Since the Federal Aviation Administration (FAA) recently loosened regulations for the commercial use of drones, a host of legal questions have arisen. See C. Ryan Barber, “The New Drone Regulations: Three Things Companies Need to Know,” Law.com, Aug. 29, 2016. Almost as soon as the FAA’s ruling was issued, an organization supporting electronic privacy filed suit against the Administration. See, e.g., Electronic Privacy Information Center, “EPIC Sues FAA, Challenges Failure to Establish Drone Privacy Safeguards,” Epic.org, Aug. 23, 2016. This article examines the privacy issues surrounding drones and discusses the role attorneys and expert witnesses will play in the pending and subsequent litigation.
The organization that sued the FAA did so on the grounds that “the agency failed to establish privacy rules for drones as required by Congress.” Id. In an attempt to bolster its claim, the complainant argued that “[M[ore than 100 organizations and experts subsequently urged the FAA to establish privacy protections prior to permitting widespread drone deployment.” Id. The history of that particular lawsuit is somewhat complex, as it involved challenging the FAA rule, then a federal appellate court’s denial of the claim, followed by the FAA issuing a final set of rules. See id. Subsequently, the plaintiff opted to challenge the final version of the Administration’s rules. See id.
That lawsuit was merely one example of privacy litigation involving drones, but it is by no means the only one. Both individual and class action lawsuits were filed in 2016, challenging drones and drone regulations on privacy grounds. Moreover, at this point, legislators in every state are attempting to deal with the issue and address how to accommodate the policy of promoting (primarily commercial) drones and simultaneously protect privacy. See, e.g., John Stang, “State legislators grapple with drone privacy and safety issues as UAVs take off,” Geek Wire, Jan. 11, 2017. In fact, “These [lawsuits and legislative considerations] are just the beginning. As more hobbyists use drones for fun and businesses start deploying them for deliveries, real estate photography, crop monitoring and other uses, the sky’s the limit for litigation, according to lawyers who follow drone issues.” Zoe Tillman, supra.
Clearly, litigation pertaining to drones and privacy issues will increase in 2017 and in the years to come. The individuals who may be the most involved in the legal questions, whether legislative or judicial, are expert witnesses. Specifically, aviation experts, privacy experts, constitutional law experts, and others will be a part of the group that assists fact-finders in reaching conclusions on these matters. See, e.g., Lori Fulbright, “Expert: Questions Still Remain Surrounding Privacy And Drones,” News on 6.com, Dec. 14, 2016.
An Oklahoma news station interviewing an aviation expert witness explained that “a lot of people have questions about drones and privacy and trespassing issues.” Id. According to the expert they interviewed, “[R]ight now, some of the answers to those questions are uncertain.” Id.
The reason for the uncertainty is simple: although the states have diligently started working to address drones and privacy issues, there are “ no national overriding privacy regulations related to drones at this point.” Id. When there are no clear guidelines on a particular matter at the legislative level, these issues tend to be left to the courts to decide, and that is no simple task. To wit, “Case law will develop over time as courts handle situations on a case by case basis,” but the lack of a coherent national or universal policy means that different jurisdictions may resolve cases in opposite ways, and those disparities in verdicts may, in turn, cause even more of a swell in this type of lawsuit, as many disappointed litigants will turn to the appellate courts to resolve the matter. Id. In the case of drones, along with similar things like 3-D printers and smartphones, “the technology develops faster than the laws, and many questions remain unanswered right now.” Id.
Regardless of the eventual outcome of legislative and judicial efforts, expert witnesses will play a key role in cases involving the question of where privacy rights begin and the right to use commercial, personal, and even military drones ends. Whether it’s a case involving legislature that needs assistance to determine how to regulate this matter or an instance where a judge or jury are the arbiters, privacy litigation pertaining to drones will depend upon expert advice and testimony. Accordingly, consulting and testifying aviation, privacy, and related expert witnesses can expect to be kept busy, helping various parties determine how competing rights should be evaluated in litigation of this type.
By: Kat S. Hatziavramidis, Attorney-at-Law