As we move into the Christmas shopping season, retailers are predicting a banner year for “drone” sales in our state. Given the absence of laws governing their use, and possible misuse, anyone concerned about privacy should be taking note of what’s happening around the nation.
Most recently, a Kentucky judge dismissed charges against a man who shot down a drone over his property. William Merideth was initially charged with criminal mischief and wanton endangerment for using his personal firearm to shoot down the drone violating his privacy.
Around the nation, people are starting to refer to Merideth as “drone slayer.” He’s a hero to liberty-minded citizens, but not necessarily to retailers, law enforcement officers, government employees and others pushing for drone use.
Could it happen here? You bet.
Drones are already in use in our airspace in Washington state. They are being used throughout the Yakima Valley and the Palouse for agricultural purposes. And several agencies, businesses and some residents took to the skies over the wildfires in Okanogan and Chelan counties the last two years to “monitor” wildfires.
In most cases, the unmanned, remote-controlled aircraft are gathering data, taking photos and recording video. Some of those videos are available on the Internet. Others are in the possession of organizations, companies and government agencies.
So what if a drone had been flown over your property without your permission? Would you file a complaint with law enforcement? Would you allow it to continue its flight — and probable photography or videography to continue — without interruption? Or would you have shot it down?
If you fly a drone over my place without my permission, it’ll be mounted on my wall.
Generally speaking, our state has few — if any — enforceable laws regarding drone and other remote-control vehicles entering your “airspace.”
Rep. David Taylor, R-Moxee, agrees. So does Rep. Jeff Morris, D-San Juan Islands. Taylor represents Grandview, Sunnyside, Mabton, Granger and other lower Yakima Valley communities as part of the 15th Legislative District.
Taylor and Morris have been at the forefront of the drone issue in our state. Morris’ bill was drafted in coordination with many House Republicans and Democrats alike.
House Republican legal counsel, Clay Hill, now of Olympia but formerly of Twisp, was among the lawyers working on developing bipartisan legislation dealing with drones and privacy. As a liberty-minded leader and privacy advocate, Hill took a personal interest in helping Taylor shepherd House Bill 1639 through the legislative process, only to have it shot down by Gov. Jay Inslee’s veto last spring. That bill would’ve restricted a government agency’s use of drones over private property.
Morris’ bill, House Bill 1093 dealing with private drone use, cleared the House, but never made it out of the Senate during the last legislative session. Had it passed, House Bill 1093 may have given us some clue as to how we defend ourselves in an invasion of privacy case involving a drone.
Interestingly, without that bill, nothing in our state’s laws definitively prohibit overflights of private property. In fact, there is some question as to whether a trespass complaint can even be filed in relation to drone overflights.
As Clay pointed out during our correspondence on this issue, state law narrowly defines second-degree criminal trespass to require the physical entrance of a person. In the alternative, trespass can also be defined as something in hand. “The drafter’s likely had in mind such objects as a crowbar, hammer, or other tool used for breaking and entering through a gate or door,” Clay said. “The throwing of a baseball over the neighbor’s fence … would not be a trespass.”
Drone use isn’t as clear cut, since you may hold a remote, or pilot one from a computer. In some communities, a judge may find a drone is in fact in-hand by virtue of the remote control. But that’s a long way down the justice pipeline when you have to make a decision to shoot to protect your privacy.
Given the ambiguity, if you choose to call law enforcement, you’re likely out of luck.
Clay also gave me some other food for thought — state law does not currently include an affirmative defense for protecting your privacy. That means if you choose to shoot down a drone, a judge is technically barred from dismissing any related charges filed against you. Better hope law enforcement doesn’t find a reason to cite you.
Looking at national cases, the only precedent I could find referenced that may relate to drones is U.S. v. Causby, a 1946 ruling saying property rights extend from the ground upward 83 feet into the air. In that case, the Supreme Court also ruled the minimum safe altitude for aircraft was 500 feet.
The FAA is now looking at suggested rules that would give the federal agency authority over any aerial vehicle above 300 feet. And by Christmas, federal officials say drone owners will have to register with the agency. But good luck using FAA rules to protect your privacy in a local court.
So what does all this mean?
It means that you’re not as protected from drone privacy invasions as you might hope. It also likely means we’ll be seeing a few more headlines involving Americans shooting down drones.
— Roger Harnack is editor and publisher of the Daily Sun News. Email him at firstname.lastname@example.org.