The threats posed to personal privacy by social media, e-commerce, smartphones and other forms of digital technology became apparent to many people only when it was too late to do much of anything about them. The same cannot be said of drones. The danger they present is readily understood: They can breach with impunity the sanctity of the home as an inviolate sphere of private life, observing and recording activities of an intimate nature that can be viewed without consent.
As staff writer Tim Camerato reported Sunday, complaints to police by homeowners subjected to drone surveillance by unknown operators have been increasing in the Upper Valley, as they have throughout the country. But as is so often the case, the law has lagged behind rapid technological innovation, with the result that flustered and frustrated victims are often told that no law protects them from voyeurism by drone.
Why that is the case is not quite clear to us. New Hampshire’s privacy law is specific and detailed. Among other things, it makes it illegal for anyone to install or use any device outside a private place for the purpose of recording, observing or transmitting images or sounds that would not ordinarily be visible or audible. Private places are defined as ones where an individual has a reasonable expectation of privacy, including dwellings.
But, as Camerato reported, law enforcement is hesitant because no privacy law in either New Hampshire or Vermont specifically applies to drones. In Vermont, for example, the only laws dealing with drones regulate their use by law enforcement agencies and prohibit arming them.
One of New Hampshire’s leading privacy advocates, former state representative Neal Kurk, tried and failed to address the issue while he served in the Legislature. He proposed bills that would have prohibited drones from flying lower than 250 feet over private property and photographing individuals who could not be observed from a public street. (He also wanted to limit their use by police by requiring a warrant to employ them in investigations, which also was a noteworthy goal.)
The effort failed, Kurk said, because business interests opposed the restrictions. Indeed, drones have a number of commercial applications. According to The Wall Street Journal, a prime use is in the building, inspecting and marketing of high-end real estate. They are also used by insurance companies to assess property damage and by construction companies to obtain images and measurements.
The Federal Aviation Administration estimates that by 2020, there will be nearly 640,000 commercial drones in operation, an increase of 130% from 2018. That is apart from the boom in recreational use dating from 2016, when the FAA made it easier to become a legal operator of drones.
Jim Cloutier, a drone evangelist who is president of a New Hampshire company that uses the devices for photography, mapping and inspection services, teaches a four-day class on drones at the University of New Hampshire. He told Camerato that he emphasizes issues of privacy and ethics, making the point that if a drone operator does something wrong, “it’s going to impact the rest of the community. We need to make sure people understand that the good (of drones) outweighs the bad.”
But does it? With drones, as with other new technology, regulators and lawmakers ought to ask themselves this question: How could this technology be perverted to its worst possible end use? The internet has demonstrated conclusively that human ingenuity will always find a way to misuse innovation for dark purposes. In this case, those include destroying privacy in the most private of spaces, the home and its intermediate surroundings.
Perhaps what is required to secure that privacy is to revive and update the old English common law doctrine “ad coelum et ad inferos,” which granted people ownership of what was above and below their homes, that is, “to the heavens and to hell.”