(Photo: Shutterstock/meunierd)

2013 drone law

Florida's 2013 drone law prohibits "law enforcement agencies" from using drones to "gather evidence or other information." Section 934.50 provides exceptions for countering the high risk of terrorist activity, prevention of imminent danger to life or serious damage to property, or to aid in the search for a missing person. The statute also provides that law enforcement agencies may use drones if search warrants are obtained.

The definition of the "law enforcement agencies" subject to the law's restrictions is fairly broad: "'Law enforcement agency' means a lawfully established state or local public agency that is responsible for the prevention and detection of crime, local government code enforcement, and the enforcement of penal, traffic, regulatory, game, or controlled substance laws" (emphasis added).

This definition reaches beyond such traditional law enforcement agencies as police departments and sheriffs' offices to include agencies like the Florida Fish and Wildlife Conservation Commission (FFWC), which is tasked with protecting and managing wildlife, freshwater fish, saltwater fish, and state lands throughout Florida. FFWC is captured in the definition due to its enforcement of Florida's game and boating laws.

The broad prohibition in the law effectively blocks the FFWC from using drones in its biological research and wildlife surveys. FFWC doesn't fit within the "search warrant" exception either, as no judge could conceivably issue a warrant to count manatees or survey the coastline, which is an unfortunate result.

Thanks in part to the 2013 law, the Florida drone industry came together and found its voice. Nothing happened at all regarding drones in the 2014 legislative session; however, 2015 was different. The 2015 law amended Section 934.50 in ways that will resonate in the UAS industry for a long while.

(Photo: Shutterstock/Goodluz)

Meaning of 'surveillance'

One of the amendments to Section 934.50 passed in 2015 creates a definition for the term "surveillance," as follows:

1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or
2. With respect to privately owned real property, the observation of such property's physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

The language may seem understandable, but don't count on it staying that way for long.

Conceivably, every picture taken with a drone would fall into this definition of "surveillance." It's not so difficult to take a picture with "sufficient visual clarity" to determine whose house you're looking at. Google Maps will do that for you—and they're working from satellite photos.

The surveillance noted in the new definition applies by its terms only to pictures or videos taken by drone platforms. So what is a drone?

According to the 2013 law, the term "drone" means a powered, aerial vehicle that:

1. Does not carry a human operator;
2. Uses aerodynamic forces to provide vehicle lift;
3. Can fly autonomously or be piloted remotely;
4. Can be expendable or recoverable; and
5. Can carry a lethal or nonlethal payload.

It covers a small UAS as well as UAS platforms that are heavier than 55 pounds. Effectively, any pictures that are taken with any UAS platform may constitute "surveillance" under the act.

 (Photo: Shutterstock/alik)

'Surveillance' is prohibited

What kinds of surveillance are prohibited? According to the statute:

A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person's reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone (emphasis added).

Let's look at the definition in more detail.

1. "A person"

The prohibition on surveillance applies not only to state agencies, but also to any "person." It applies to individuals and companies because the Florida statutes define a "person" to include individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. Therefore, any individual or company flying a drone may be affected by this prohibition. 

2. "[A] drone equipped with an imaging device"

According to the statute, the term means "a mechanical, digital, or electronic viewing device; still camera; camcorder; motion picture camera; or any other instrument, equipment, or format capable of recording, storing, or transmitting an image." So any sensor counts. Every DJI Phantom with a GoPro is captured by this definition as well as every high-end system with a multispectral camera.

(Photo: Shutterstock/Mike Focus)

3. "[T]o record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance"

The definition of surveillance doesn't only mean spying on someone. It includes any picture taken with "sufficient visual clarity" to identify property or a person. That's a pretty basic capability. Anyone who takes a picture or video with a small UAS platform equipped with an "imaging device" with "sufficient visual clarity" to identify a particular house may potentially violate the statute.

Whether something counts as "intent" in this context will likely revolve around criminal case law. Section 934.50 applies to "Security of Communications; Surveillance," which means that the definitions of "intent" that crop up in cases dealing with related statutes will impact what "intent" means in that section.

The application of other surveillance definitions and case law to Section 934.50 may become quite difficult because our drone law defines surveillance in a unique way. When you change the definition, the same word used in different contexts doesn't necessarily mean the same thing. So the existing "surveillance" and "intent" case law may or may not apply.

Clear enough? Welcome to my world—this is what lawyers do all day!

(Photo: Shutterstock/alik)

4. "[I]n violation of such person's reasonable expectation of privacy without his or her written consent"

This sounds nice, right? Who wants to have their "reasonable expectation of privacy" violated? As you might expect, this is more complicated than it seems.

We already know that "surveillance" includes taking any kind of picture or video that can identify a house or person—which can be taken by your smartphone.

So what does it mean that "surveillance" is prohibited when it violates a "reasonable expectation of privacy?" According to the statute, "[f]or purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

The term "reasonable expectation of privacy" comes to us from the Fourth Amendment to the U.S. Constitution, which protects citizens from "unreasonable searches and seizures" by the government. In general, the Fourth Amendment applies when a citizen has a "reasonable expectation of privacy." If that expectation exists, then a warrant is required to conduct a Fourth Amendment "search." If the Fourth Amendment does not apply to a given situation, then the police don't have to get a warrant to gather incriminating information.

(Photo: Shutterstock/wavebreakmedia)

It's well established that you have no reasonable expectation of privacy if you can be seen from the air by the naked eye or through the use of cameras. If you're outside a structure, you're fair game for police observation. If you're inside a structure but there's a missing roof slat or an open skylight, anything visible through the opening is fair game. But Section 934.50 creates an "expectation of privacy" even if the person is visible from the air. And this expectation only applies to observations with drone technology, not the police helicopter flying over your property and observing illegal activity.

This new and unprecedented definition is going to lead to court battles that may continue for years. (If you're interested in more on this specific topic, I urge you to download this paper by Troy A. Rule, a law professor at Arizona State University, Sandra Day O'Connor College of Law. Top-notch.)

When you add in the requirement of a drone operator gaining the "written consent" of every property owner that is potentially captured in an "image," you can appreciate the difficulty of complying with this law.

There is some speculation that the entire law is unconstitutional and in conflict with the First Amendment. That topic is outside the scope of this article, but you can read more about the issue here.

(Photo: Shutterstock/iQoncept)

Suing the drone operator

It's one thing for surveillance to be prohibited. It's quite another to discuss what happens when prohibited surveillance occurs.

If a state agency violates the statute, a citizen can bring a lawsuit to stop that violation. The party suing also can seek "all appropriate relief" that a judge may come up with to "prevent or remedy" such violations. The term "state agency" in this statute captures much more than traditional law enforcement.

If a person (including a company, remember) violates the statute, a citizen can bring a lawsuit to stop the violation and to get "compensatory damages" for violation of privacy. If that was all that you could win in a lawsuit, you'd be hard pressed to find a person willing to foot the bill to litigate it. The reason is that "damages" for invasion of privacy torts are notoriously hard to measure. So you'd end up suing, winning maybe $100, and paying your attorneys several thousand dollars for the trouble.

This statute makes lawsuits much more likely, however, by allowing the prevailing party to win attorneys' fees against the losing party. What's more, if the attorney takes the case on a contingency basis, earning a percentage of the recovery, the fees may be multiplied by two to create a bigger award.

The prevailing party fees can go both ways. If a property owner sues a drone operator and loses, then the drone operator can get a judgment against the property owner for its attorneys' fees.

Litigation is quite likely to proliferate due to the attorneys' fees provision. Both drone operators and aggrieved property owners will find it easier to hire attorneys to fight out violations of the statute.

(Photo: Shutterstock/Slavoljub Pantelic)

Acceptable commercial operations

Everything we've just covered is the general rule; however, the statute does contain some exceptions.

If a drone operator is engaged in "a business or profession licensed by the state [of Florida]," then those operations are expressly carved out of the statutory prohibitions. If such an operator is using a drone to "perform reasonable tasks" pursuant to its license, then those activities are not prohibited.

The exception to the exception is when that license involves intentionally gathering information about people. Yes, Florida licenses private investigators. That means private investigators can't use drones!

Other "carve-outs" include:

• property appraisers using drones in their operations;
• capturing images for electric, water, or natural gas utilities;
• for "aerial mapping," as long as the operator follows FAA rules;
• for delivering cargo, as long as the operator follows FAA rules; and
• to capture images necessary for safe operation of the drone itself (think: flights beyond visual line of sight).

The answer to whether any of those carve-outs conflict with the general prohibition on surveillance is a solid "maybe."

Also, these carve-outs may have left out new, innovative uses for drone technology that no one has thought of yet. That means entrepreneurs with new ideas for the industry may find it hard to "get flying" in Florida.

I encourage you to think about what the consequences might be for your business or clients. If you're in Florida, you should contact your legislator to share your opinion! [See the last chapter of my book for info on how to do that.] That's the way we make change happen.

Steven M. Hogan practices law at Ausley McMullen in Tallahassee, Fla., working with companies nationwide that are developing commercial applications for unmanned aircraft systems. He frequently speaks and writes on the subject of commercial drone technology. His book, The Drone Revolution, was recently published on Amazon and you can claim a free copy of the book at his blog, www.robotic-aviation.com. Mr. Hogan received his law degree from the Florida State University College of Law. For additional information about his drone law practice, please visit www.dronelawyers.com.