Having just fired up her Amazing Alexis and connected it with her other “smart” devices handling her heat, lights and security, Honor was sharing with her husband some troubling, sensitive health information about her trip that day to the doctor’s office. Honor’s tale was interrupted by a call from her brother who demanded “unplug your Alexis devices right now, You’re being hacked!” Sadly, Honor’s recorded tale also made its way to the editor of the neighborhood news-blog Gladys Gravits, who shared it in the community email, along with her effusive professions of sympathy. Does Honor have any recourse? Continue Reading Privacy Alert – Alexa (and Friends) is Listening!

Frazzled by the incessant demands for her company Acne Brick’s financial records from her husband’s divorce lawyer Ditcher Quick, company president Annie Acne was wondering what her next maneuver might be when her Information Technology officer walked into her office. The subpoena that he was holding demanded production of all Acne email communications between Annie and (i) her divorce lawyers and (ii) her attorney brother who helped her rearrange just a few things. Annie immediately called her attorney Elle O’Quent to ask, “Can Acne Brick be ordered to produce Annie’s emails from Acne’s computer?” Continue Reading Is Your Company Email to Santa Protected?

“Big” Bob Brothers is concerned that his company, Big Brothers Security Systems, is losing out on customers because his salesmen and installation teams are slacking when they are out of the office.  Brothers reads a newspaper article about another company that is putting microchip implants containing radio-frequency identification tags (RFID) into his employees in order to make sure they aren’t doing “off the clock” stuff while on the clock.  Brothers sends a memo to employees explaining that they will all be chipped the next month, and anyone refusing to chip will be terminated.  Can Brothers “big brother” his employees like that?   

Continue Reading Can I “Chip” Away at my Employees’ Privacy?

Drone with CameraTrying to avoid the sweltering heat, “Uncle Jesse” Duke was in the garage working on his moonshine operation when he heard a loud shriek in the backyard. He ran to the back to find his niece, Daisy, sunbathing by the pool. Daisy shouted, “That drone keeps hovering over the pool area looking toward me. Do something about it Uncle Jesse!” Uncle Jesse quickly ran back to the garage, grabbed his trusty shotgun, and blew the drone out of the sky. An hour later Sheriff Coltrane showed up at Jesse’s house and asked, “Jesse, did you shoot a drone?” Jesse responded, “You’re durn right I did.” Sheriff Coltrane replied, “Well Jesse, that was Boss Hogg’s $2,000 drone you destroyed. I’m sorry, but I’m gonna have to arrest you.” Jesse said, “I didn’t commit no crime Sheriff. It’s my American right to defend my property.” Is Jesse right?

Can You Lawfully Shoot Down a Drone over Your Property?

Two reported cases in New Jersey and Kentucky deal with shooting drones flying over private property. Both times the shooters were charged with criminal mischief and related misdemeanors. As a starting point, your homeowner’s property is both the dirt and your improvements, and also a reasonable amount of airspace necessary to utilize your property. While you can’t complain that the American Airlines flight at 30,000 feet is trespassing on your property, a drone that’s only 200 feet off the ground…? Well, that’s probably a different story…

Earlier Tilting articles mentioned that each state has a “castle doctrine.” Although it varies by state, the “Castle Doctrine” generally allows homeowners to protect themselves, and in some cases their property, with force.   Beyond the “Castle Doctrine” Texas has another law that permits a property owner to use “force” when the property owner reasonably believes it is necessary to prevent a trespass on their land.   Using that Texas statute, the conduct may be justified and criminal liability may be avoided where the homeowner used “deadly force” (i.e., a gun) to shoot down the drone.

What about civil liability?

The homeowner’s action may also be justified against civil liability if the homeowner can prove: (1) the trespassing Drone was not privileged to be above the homeowner’s property (such as to avoid an emergency); (2) the homeowner reasonably believed the trespass by the Drone can only be prevented or terminated by the force used; and (3) the homeowner either requested the trespass cease, or reasonably believed that request would be useless or that substantial harm would be done before the request can be made. But there is no clear cut answer at this time, and these defenses would be decided by a court or jury.

Tilting the Scales in Your Favor

While no one wants their privacy intruded upon, we do not recommend shooting a drone out of the sky. While you might have good legal arguments to justify your actions – and probably have a jury’s sympathy – it will still be a costly process, particularly when you may be one of the first cases of this kind in the state. Obviously, your liability exposure is compounded if you happen to miss the drone and hit another person or their property.

Having said that the drone owner does not necessarily get away scot-free. In 2013 the Texas Legislature passed a law that creates a private cause of action against the drone owner or user for using a drone to capture an image of the property owner (or tenant) or their property and allows the property owner to recover $5,000 for all of the images captured during each trespass, as well as court costs and attorney’s fees. The drone owner or user may also be liable to the homeowner for trespassing and for one of the torts of invasion of privacy (check out our other article this month “Can You Videotape Someone Else’s Conversation”). Next month we’ll explore this issue from the drone owner’s perspective, including federal regulations and recommendations for flying unmanned drones.

Soon, the days of having to wait for your online purchase to arrive may be a thing of the past.  Nile, giant online retailer of everything from books to breakfast cereal, announced that it intended to deploy a fleet of commercial drones to deliver packages mere minutes after your order is placed.  Are there legal hurdles that might ground Nile’s ambitious plan?

             FAA:  Drones Pose Air Traffic Nightmare.  Although the FAA allows for governmental use of drones within U.S. airspace (e.g. surveillance along the borders), those drones are operated by ground-based pilots who are in regular contact with air traffic controllers.  Currently, the FAA bans commercial drones, such as those proposed by Nile.  Smaller drones, operated by individuals, utilize the rules for radio-controlled model planes and avoid the ban by flying within the operator’s sight, by staying below an altitude of 400 feet and away from airports.  Congress directed the FAA to propose safety regulations permitting commercial drones in domestic airspace by September 2015. The FAA has promised draft regulations for small commercial drones (weighing less than 55 pounds) by next year.  Even the most optimistic estimates are that commercial drone regulations for operators like Nile are years from enactment.

             Privacy:  Another obstacle to Nile’s drone deployment will be the myriad of privacy concerns.  Privacy concerns have been the focus for most of the forty-three states that have considered around 100 drone-related bills.  Warning that “companies could use drones for information gathering whether that is taking a photograph of your patio furniture or recording the make and model of your car,” Texas Republican Representative Ted Poe introduced legislation to protect people’s privacy from drones. 

            Possible Implications and Responses. How would you feel about a Nile drone flying over your house and then emailing you with suggested products or services?  Rep. Poe’s Preserving American Privacy Act seeks to prohibit individuals and companies from using drones for photography and surveillance and to prohibit surveillance by government drones without a warrant.  Poe stated, “Congress has to make sure that the use of drones in the future does not infringe on the right of individual citizens to privacy… Just because big brother or private companies can look through a person’s windows doesn’t mean they should be able to.”  Just imagine the detailed, current information Nile must gather to safely deliver a package to your doorstep.  We marvel at the functionality of Google Maps, but it is usually out-of-date and only accurate within several meters.  While this is plenty accurate to navigate to a friend’s party, Nile’s drones, on the other hand, would require constant updates about potential obstacles such as trees, new construction, etc., would have to be able to land on a precise GPS coordinate and would know the physical characteristics of your home better than you.  To effectively deliver a package, they might even track when you are home or when you are away.

             Liability:  Even more important than assigning liability for stolen or damages packages will be the inevitable issue of personal liability.  To deliver a 5-pound package, a Nile drone would be equipped with a substantial motor, a dangerous propeller(s), and would have many obstacles to avoid.  Who would be liable when a drone malfunctions (mechanical, weather, a neighbor’s 13-year-old son shooting it down with a bb gun) and hits and injures a person, pet, vehicle or collides with a downtown skyscraper?  Would we ever feel safe with these autonomous, self-guided flying machines filling our skies?  Even Google’s self-driving cars, which prove safer than cars driven by humans, are not yet a reality because of a morass of potential legal issues arising from our inherent distrust of the technology. 

The idea of packages delivered to your doorstep within minutes is incredibly intriguing. However, the significant legal hurdles suggest that Nile’s extraordinary plan may be more PR stunt than practical reality.