The Volokh Conspiracy
February 19, 2012
By now many will have seen the news stories reporting how an animal rights group sent up a small drone with cameras attached to take video of a group of hunters out on a pigeon shoot. The hunters responded to the drone by shooting it down. Like many in the blogosphere, I was mostly amused, and tweeted that no one seemed to have told the animal rights group that the first rule of drone warfare is … establish air superiority. Okay. We also have many other stories of private organizations – NGOs of one kind or another, as well as commercial enterprises (leave aside the fact that FAA regulations currently permit only hobbyist use of UAVs) – using, or attempting to use, drones in order to monitor various activities that they find objectionable. Some of this takes place in the United States, some of it over public land and some of it over private land, and some of it takes place outside the US, including attempts to monitor whaling at sea.
These private activities, whether by advocacy groups or commercial enterprises or just ordinary individuals, conducted over private property raise important questions that will have to answered one way or another. One is whether it is lawful for a private party to conduct surveillance from the air over private property. If it is, then a further question is whether countermeasures – and what kinds – might also be lawful. One can always move indoors, and then we will have further, technology-driven debates over what kinds of sensors would be lawful that might permit private parties to “see” inside buildings. We might envision “passive” countermeasures, such as jamming devices – about which the FCC and other regulatory agencies might have something to say. We might have active countermeasures – shoot it down – about which, presumably, law enforcement and other agencies might also have something to say.