Phil Querin Q&A - Drones and Your Community

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July 25, 2017
Phil Querin
MHCO Legal Counsel
Querin Law

Question.  Our community is updating our rules and regulations. Should we include anything about the use of drones flying over people’s backyards?  Can this be controlled for privacy's sake?

 

Civil Law. On the civil side (as opposed to the criminal side) of the law, the common law tort concepts of negligence, assault, invasion of privacy (applying the “reasonable expectation” test), and nuisance, still apply, as does the law of trespass to real property. In such cases, the plaintiff would have a right to sue for damages.  However, with only limited exceptions, prevailing attorney fees are not available.

 

Airspace. The Federal Aviation Administration (“FAA”), regulates airspace, including that which is above private land. So knowing the state, and federal laws, is critical before using drones.

 

Conclusion.  As you can see, most of these prohibitions are found in one form or another, without the necessity of being addressed in your community rules. However, given their ubiquitous presence, especially by folks who are just hobbyists, I do suggest having some rules. Why? Because if someone was using a drone for their own prurient interests, e.g. flying over someone’s fenced backyard, or for harassment purposes, it’s far easier for management to take action against the perpetrator for a rules violation, than it is telling an offended or harassed resident to file a lawsuit or criminal complaint.

 


[1] Oregon law also identifies “critical infrastructure facilities” for which it is a violation of the law to fly a drone over them at an altitude of under 400 feet.

[2] All of which are addressed in the 2016 law.

 

Answer.  When I went to law school, “drones” were the worker bees.  There were no legal classes on them, and I never imagined I’d be writing articles about them today. This is to say that my answer below should be viewed as general in nature. So if you disagree with me, please refrain from a stinging rebuke.

 

Legally speaking, the law in Oregon and elsewhere is still developing. However, the ones currently in existence are significant, and should be kept in mind for those thinking about using drones, or those feeling harassed by them.

 

ORS 163.700 Amended March 29, 2016, by Chapter 72, Oregon Laws 2016, defines what we call a “drone” as follows:

 

“Unmanned aircraft system” means an unmanned flying machine, commonly known as a drone, and its associated elements, including communication links and the components that control the machine.

 

Of course there are several criminal prohibitions against weaponizing drones[1], causing reckless interference with aircraft, use by public bodies, etc.[2].

 

Criminal Laws. ORS 837.380 was amended in 2016 to provide:

 

 

A person who owns or lawfully occupies real property in Oregon “may bring an action against any person or public body that operates an unmanned aircraft sys- tem that is flown over the property if the operator of the unmanned aircraft system has flown the unmanned aircraft system over the property on at least one previous occasion; and the person notified the owner or operator of the unmanned aircraft system that the person did not want the unmanned aircraft system flown over the property.

 

However, a person may not bring an action under this section if the drone was lawfully in the flight path for landing at an airport, airfield or runway; and is in the process of taking off or landing.

 

And there is a major commercial exception:

 

A person may not bring an action under this section if the unmanned aircraft system is operated for commercial purposes in compliance with authorization granted by the Federal Aviation Administration. This subsection does not preclude a person from bringing another civil action, including but not limited to an action for invasion of privacy or an action for invasion of personal privacy under ORS 30.865.

 

Under the statute, a prevailing plaintiff may recover treble damages for any injury to the person or the property by reason of a trespass by a drone, and may be awarded injunctive relief in the action. They may also recover attorney fees under ORS 20.080 if the amount pleaded in an action under this section is $10,000 or less.

 

Further, the Attorney General, on behalf of the State of Oregon, may bring an action or claim for relief alleging nuisance or trespass arising from the operation of a drone in Oregon airspace. The court may also award reasonable attorney fees to the Attorney General if they prevail in their claim.

 

Reasonable Expectation of Privacy.  The laws protecting privacy, have been applied to the use of drones. Accordingly, the 2016 law provides that a person commits the crime of “invasion of personal privacy” if they knowingly record others in an area where they have a “reasonable expectation of privacy.  To put the “expectation of privacy” in context, I would suggest that a woman or man going to a public beach with a scantily clad bathing suit, should not expect the zone of privacy to apply to them. However, if they are in their enclosed backyard, they would.  

 

The statute, in more prosaic terms, reads thusly:

 

Places and circumstances where the person has a reasonable expectation of personal privacy” includes, but is not limited to, a bathroom, dressing room, locker room that includes an enclosed area for dressing or showering, tanning booth and any area where a person undresses in an enclosed space that is not open to public view.

 

Invasion of personal privacy in the second degree is a Class A misdemeanor.

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