Drones, also known as unmanned aerial vehicles or unmannedaerial systems, can be equipped with cameras, thermal scanners,license plate readers and facial-recognition software.

Able to accomplish feats that manned aircraft and eventraditional remote-controlled airplanes cannot, they can get withinclose proximity of a person or property, unnoticed, and takeaudio-video recordings and photographs.

They can also provide streaming video to an audience over asmall personal device like a smartphone. Given their technology andcapabilities, drones allow for new forms of privacy invasion.

Drones have become increasingly popular as the technology hasadvanced and prices have gone down. The Federal AviationAdministration estimated that at least 1.6 million drones were soldin 2015.

Commercial and private aircraft flying legally over privateproperty in the navigable airspace established by the FAA havealways enjoyed freedom from claims of invasion of privacy.

However, drones can operate in extremely confined spaces at lowaltitudes, and the FAA has limited their recreational use to analtitude below 400 feet. Drones flying over a person or backyardwould be lower than 400 feet, creating conditions for a forthcomingstorm of invasion-of-privacy claims arising out of dronesurveillance.

Common-law invasion of privacy

There are two forms of common law invasion of privacy: Intrusionupon seclusion and publication of private facts. 

1. Intrusion upon seclusion

A leading treatise defines intrusion upon seclusion as a tort inwhich one "intentionally intrudes, physically or otherwise, uponthe solitude or seclusion of another or his private affairs orconcerns, is subject to liability to the other for invasion of hisprivacy, if the intrusion would be highly offensive to a reasonableperson." Intrusion upon seclusion must be intentional; there is nosuch tort as negligent intrusion upon seclusion.

Intrusion on seclusion means intrusion into a private space.Observation of a person in public generally does not amount toliability for intrusion upon seclusion. For example, using a droneto hover outside someone's home while using the drone's mountedcamera to peer into a window without that person's permission couldsubject the drone operator to liability for common-law intrusionupon seclusion.

2. Publication of private facts

The second form of common-law invasion of privacy is publicationof private facts. The elements of this tort are the publication ofprivate facts that are offensive and are of no public concern. Thetort addresses the public dissemination of private informationrather than the mere gathering of the information itself.Accordingly, a person who gathers the private information, but thendoes not publicly disseminate it, is not liable for this tort.Disseminating the private facts presupposes intent by theactor.

States taking action

Many states have passed laws directed at drones in light ofgrowing invasion-of-privacy concerns.

States such as Florida, Idaho, North Carolina, Oregon, Tennesseeand Texas have passed laws that address the use of drones byprivate parties. For instance, Florida's Freedom from Unwarranted SurveillanceAct prohibits the use of a drone "to record an image ofprivately owned real property or of the owner, tenant, occupant,invitee or licensee of such property with the intent to conductsurveillance on the individual or property captured in the image inviolation of such person's reasonable expectation of privacywithout his or her written consent."

Under the statute, "a person is presumed to have a reasonableexpectation of privacy on his or her privately owned real propertyif he or she is not observable by persons located at ground levelin a place where they have a legal right to be, regardless ofwhether he or she is observable from the air with the use of adrone." The prevailing plaintiff is entitled to compensatorydamages and injunctive relief to prevent future violations againstthe offender, plus reasonable attorney's fees. A fee multiplier isnot allowed unless the case is tried to a verdict, in which case amultiplier of up to twice the actual value of the time expended maybe awarded. Punitive damages may also be awarded subject to otherrequirements and limitations under the law.

Some states have had stalking statutes in place for years.California, for example, passed a stalking statute a few years agoto deal, in particular, with paparazzi stalking celebrities.Stalking statutes create a private cause of action against anyonewho engages in a pattern of conduct with the intent to follow,alarm, place under surveillance or harass the plaintiff, and whichcauses fear for safety or emotional distress. A drone can followand hover over someone and cause considerable emotional alarm. Manynews stories have reported on these types of incidents. The courtswould almost certainly be willing to permit a victim ofdrone-stalking to pursue a civil action under state civil-stalkingstatutes.

Insurance policies and privacy-invadingdrones

As privacy-tort claims against drone-operating policyholdersbegin to materialize, insurers need to be ready to make coveragedeterminations. The type of insurance policy issued to the droneoperator may determine whether the policy will potentially coverthe claim. A typical homeowners policy and a commercial generalliability policy would, more than likely, not cover an insured whoused a drone to violate someone's privacy, as explained below.

Related: 10 risks and misuses for drones

Some policies may cover property damage, but not invasion ofprivacy claims. (Photo: Shutterstock)

Homeowner policies

Coverage E under a typical homeowners policy providescomprehensive personal liability coverage.

This type of coverage protects the insured against claimsarising out of accidents that cause injuries or damage to others onproperty the insured owns or rents. A homeowners policy alsofollows the insured wherever he or she goes in the coverageterritory, unless the accident involves an automobile, boat oraircraft (that is, an auto, boat or aircraft exclusion may apply).Coverage E applies only to accidents, though. The insuring languagerequires an accident that caused the injury or damage. In addition,Coverage E usually has an intentional-or-expected injury exclusion.A standard homeowner's policy does not cover personal injury claimsthat may include invasion of privacy.

If a homeowner uses a drone to spy on her neighbor and theneighbor sues, there may not be coverage under the homeownerspolicy for a few reasons. First, there is no such as thing asnegligent intrusion upon seclusion, as discussed above, so theinsuring clause language may not be met. Second, anintentional-or-expected injury exclusion may apply, assuming theinsuring language is even met. Third, an aircraft exclusion mayalso apply, depending upon how the policy defines "aircraft."

CGL policies

All kinds of businesses purchase commercial general liabilitypolicies. The guiding principle behind general liability insuranceis that it does not cover intended or expected injuries. Alongthose lines, the insuring language under Coverage A requires anaccident that causes injury or damage.

A small-business owner who spies on an individual could causeher "bodily injury." Some commercial generalliability policies under Coverage A define "bodily injury"to include mental anguish, mental injury, shock and fright.Although the definition of "bodily injury" may be met, aninvasion-of-privacy tort requires intent. Thus, the insuringlanguage that requires an accident will not be met. Coverage Atypically also has an expected-or-intentional injury exclusion thatwill be triggered. Coverage A under a commercial generalliability policy would therefore probably not respond toan invasion-of-privacy claim because of its intentional nature.

Coverage B under a commercial general liability policycovers "personal and advertising injury," so the drone operatorfacing an invasion-of-privacy claim should look under that coveragepart for potential coverage. Coverage B's insuring clause typicallyprovides that the insurer "will pay those sums that the insuredbecomes legally obligated to pay as damages because of 'personaland advertising injury' to which this insurance applies." Thetypical policy defines "personal and advertising injury" as"injury, including consequential 'bodily injury,' arising out of …Oral or written publication, in any manner, of material thatviolates a person's right of privacy." Thus, if a lawsuit alleges aviolation of the right of privacy, a commercial generalliability policy's Coverage B may be implicated.

The "Knowing Violation of Rights of Another" exclusion inCoverage B may likely apply, however. The exclusion precludesadvertising injury caused by or at the direction of the insuredwith the knowledge that the act would violate the rights of anotherand would inflict "personal and advertising injury." This exclusionmay therefore preclude coverage under Coverage B for a droneinvading someone's privacy.

While drones are relatively new, invasion-of-privacy claims arenot. Drones simply provide a new vehicle for voyeurs and otherill-intentioned actors to invade a person's privacy.

As drone technology continues to advance, it will allow peopleto invade someone's privacy with more ease, so inevitably, morepeople will do it.

Tort law and insurance coverage issues surrounding drones maynot be so different than cases involving a different and moretraditional vehicle or instrument such as an automobile, modelairplane and the like. Most tort laws protect against negligenceand so liability policies cover negligence claims. However,invasion-of-privacy claims are intentional in nature and typicalliability insurance will not cover them.

James Michael Shaw Jr., J.D., and Ryan K. Hilton, J.D.,are partners and co-chairs of the aviation practicegroup at ButlerWeihmuller Katz Craig LLP in Tampa, Florida.

Related: 10 steps to mitigating drone risks on constructionsites