Florida recently passed a new drone law, which is thesecond one in my home state. The first drone law, passed in 2013, blocked most state agenciesfrom flying an unmanned aircraft system (UAS), better known as adrone, for any purpose, even basic research.

No one was targeting the commercial drone industry in 2013. Theconsequences of the law came from a lack of awareness about theways drone technology can change the world.

The 2015 law signed by thegovernor on May 14 is quite different, however. Its provisionsdirectly impact commercial operations, but its full consequencesare unclear at the moment. We can only begin to guess what theymight be.

One thing is clear. The new law will create many lawsuitsbecause it provides opportunities for people to sue drone operatorsand gives the "prevailing party" the right to attorneys'fees. Anyone who wants to sue a drone operator can do so withoutpaying the lawyer out of pocket.

(Photo: Shutterstock/meunierd)

2013 drone law

Florida's 2013 drone law prohibits "law enforcement agencies" from usingdrones to "gather evidence or other information." Section 934.50provides exceptions for countering the high risk of terroristactivity, prevention of imminent danger to life or serious damageto property, or to aid in the search for a missing person. Thestatute also provides that law enforcement agencies may use dronesif search warrants are obtained.

The definition of the "law enforcement agencies" subject to thelaw's restrictions is fairly broad: "'Law enforcement agency' meansa lawfully established state or local publicagency that is responsible for the prevention anddetection of crime, local government code enforcement, andthe enforcement of penal, traffic, regulatory, game, or controlledsubstance laws" (emphasis added).

This definition reaches beyond such traditional law enforcementagencies as police departments and sheriffs' offices to includeagencies like the Florida Fish andWildlife Conservation Commission (FFWC), which is tasked withprotecting and managing wildlife, freshwater fish, saltwater fish,and state lands throughout Florida. FFWC is captured in thedefinition due to its enforcement of Florida's game and boatinglaws.

The broad prohibition in the law effectively blocks the FFWCfrom using drones in its biological research and wildlife surveys.FFWC doesn't fit within the "search warrant" exception either, asno judge could conceivably issue a warrant to count manatees orsurvey the coastline, which is an unfortunate result.

Thanks in part to the 2013 law, the Florida drone industry cametogether and found its voice. Nothing happened at all regardingdrones in the 2014 legislative session; however, 2015 wasdifferent. The 2015 law amended Section 934.50 in ways that willresonate in the UAS industry for a long while.

(Photo: Shutterstock/Goodluz)

Meaning of 'surveillance'

One of the amendments to Section 934.50 passed in 2015 creates adefinition for the term "surveillance," as follows:

1. With respect to an owner, tenant, occupant, invitee, orlicensee of privately owned real property, the observation of suchpersons with sufficient visual clarity to be able to obtaininformation about their identity, habits, conduct, movements, orwhereabouts; or
2. With respect to privately owned real property, the observationof such property's physical improvements with sufficient visualclarity to be able to determine unique identifying features or itsoccupancy by one or more persons.

The language may seem understandable, but don't count on itstaying that way for long.

Conceivably, every picture taken with a drone would fall intothis definition of "surveillance." It's not so difficult to take apicture with "sufficient visual clarity" to determine whose houseyou're looking at. Google Maps will do that for you—and they'reworking from satellite photos.

The surveillance noted in the new definition applies by itsterms only to pictures or videos taken by drone platforms. So whatis a drone?

According to the 2013 law, the term "drone" means a powered,aerial vehicle that:

1. Does not carry a human operator;
2. Uses aerodynamic forces to provide vehicle lift;
3. Can fly autonomously or be piloted remotely;
4. Can be expendable or recoverable; and
5. Can carry a lethal or nonlethal payload.

It covers a small UAS as well as UAS platforms that are heavierthan 55 pounds. Effectively, any pictures that are takenwith any UAS platform may constitute "surveillance" underthe act.

 (Photo: Shutterstock/alik)

'Surveillance' is prohibited

What kinds of surveillance are prohibited? According to thestatute:

A person, a stateagency, or a political subdivision as defined in s. 11.45 may notuse a drone equipped with an imaging deviceto record an image of privately owned real property or ofthe owner, tenant, occupant, invitee, or licensee of such propertywith the intent to conduct surveillance on the individualor property captured in the image in violation of suchperson's reasonable expectation of privacy without his or herwritten consent. For purposes of this section, a personis presumed to have a reasonable expectation of privacy onhis or her privately owned real property if he or she is notobservable by persons located at ground level in a place where theyhave a legal right to be, regardless of whether he or she isobservable from the air with the use of a drone (emphasisadded).

Let's look at the definition in more detail.

1. "A person"

The prohibition on surveillance applies not only to stateagencies, but also to any "person." It applies to individuals andcompanies because the Florida statutes define a "person" to includeindividuals, children, firms, associations, joint adventures,partnerships, estates, trusts, business trusts, syndicates,fiduciaries, corporations, and all other groups or combinations.Therefore, any individual or company flying a drone may be affectedby this prohibition. 

2. "[A] drone equipped with an imaging device"

According to the statute, the term means "a mechanical, digital,or electronic viewing device; still camera; camcorder; motionpicture camera; or any other instrument, equipment, or formatcapable of recording, storing, or transmitting an image." So anysensor counts. Every DJI Phantom with a GoPro is captured by thisdefinition as well as every high-end system with a multispectralcamera.

(Photo: Shutterstock/Mike Focus)

3. "[T]o record an image of privately owned real property or ofthe owner, tenant, occupant, invitee, or licensee of such propertywith the intent to conduct surveillance"

The definition of surveillance doesn't only mean spying onsomeone. It includes any picture taken with "sufficientvisual clarity" to identify property or a person. That's a prettybasic capability. Anyone who takes a picture or video with a smallUAS platform equipped with an "imaging device" with "sufficientvisual clarity" to identify a particular house may potentiallyviolate the statute.

Whether something counts as "intent" in this context will likelyrevolve around criminal case law. Section 934.50 applies to"Security of Communications; Surveillance," which means that thedefinitions of "intent" that crop up in cases dealing with relatedstatutes will impact what "intent" means in that section.

The application of other surveillance definitions and case lawto Section 934.50 may become quite difficult because our drone lawdefines surveillance in a unique way. When you change thedefinition, the same word used in different contexts doesn'tnecessarily mean the same thing. So the existing "surveillance" and"intent" case law may or may not apply.

Clear enough? Welcome to my world—this is what lawyers do allday!

(Photo: Shutterstock/alik)

4. "[I]n violation of such person's reasonable expectation ofprivacy without his or her written consent"

This sounds nice, right? Who wants to have their "reasonableexpectation of privacy" violated? As you might expect, this is morecomplicated than it seems.

We already know that "surveillance" includes taking any kind ofpicture or video that can identify a house or person—which can betaken by your smartphone.

So what does it mean that "surveillance" is prohibited when itviolates a "reasonable expectation of privacy?" According to thestatute, "[f]or purposes of this section, a person is presumed tohave a reasonable expectation of privacy on his or her privatelyowned real property if he or she is not observable by personslocated at ground level in a place where they have a legal right tobe, regardless of whether he or she is observable from the air withthe use of a drone.

The term "reasonable expectation of privacy" comes to us fromthe FourthAmendment to the U.S. Constitution, which protects citizensfrom "unreasonable searches and seizures" by the government. Ingeneral, the Fourth Amendment applies when a citizen has a"reasonable expectation of privacy." If that expectation exists,then a warrant is required to conduct a Fourth Amendment "search."If the Fourth Amendment does not apply to a givensituation, then the police don't have to get a warrant to gatherincriminating information.

(Photo: Shutterstock/wavebreakmedia)

It's well established that you have no reasonable expectation ofprivacy if you can be seen from the air by the naked eyeor through the use of cameras. If you're outside astructure, you're fair game for police observation. If you'reinside a structure but there's a missing roof slat or anopen skylight, anything visible through the opening is fair game.But Section 934.50 creates an "expectation of privacy"even if the person is visible from the air. And this expectationonly applies to observations with drone technology, notthe police helicopter flying over your property and observingillegal activity.

This new and unprecedented definition is going to lead to courtbattles that may continue for years. (If you're interested in moreon this specific topic, I urge you to downloadthis paper by Troy A. Rule, a law professor at Arizona StateUniversity, Sandra Day O'Connor College of Law. Top-notch.)

When you add in the requirement of a drone operator gaining the"written consent" of every property owner that is potentiallycaptured in an "image," you can appreciate the difficulty ofcomplying with this law.

There is some speculation that the entire law isunconstitutional and in conflict with the First Amendment. Thattopic is outside the scope of this article, but you can read more aboutthe issue here.

(Photo: Shutterstock/iQoncept)

Suing the drone operator

It's one thing for surveillance to be prohibited. It's quiteanother to discuss what happens when prohibited surveillanceoccurs.

If a state agency violates the statute, a citizen canbring a lawsuit to stop that violation. The party suing also canseek "all appropriate relief" that a judge may come up with to"prevent or remedy" such violations. The term "state agency" inthis statute captures much more than traditional law enforcement.

If a person (including a company, remember) violatesthe statute, a citizen can bring a lawsuit to stop the violationand to get "compensatory damages" for violation ofprivacy. If that was all that you could win in a lawsuit, you'd behard pressed to find a person willing to foot the bill to litigateit. The reason is that "damages" for invasion of privacy torts arenotoriously hard to measure. So you'd end up suing, winning maybe$100, and paying your attorneys several thousand dollars for thetrouble.

This statute makes lawsuits much more likely, however, byallowing the prevailing party to win attorneys' fees against thelosing party. What's more, if the attorney takes the case on acontingency basis, earning a percentage of the recovery, the feesmay be multiplied by two to create a bigger award.

The prevailing party fees can go both ways. If a property ownersues a drone operator and loses, then the droneoperator can get a judgment against the property owner for itsattorneys' fees.

Litigation is quite likely to proliferate due to the attorneys'fees provision. Both drone operators and aggrieved property ownerswill find it easier to hire attorneys to fight out violations ofthe statute.

(Photo: Shutterstock/Slavoljub Pantelic)

Acceptable commercial operations

Everything we've just covered is the general rule; however, thestatute does contain some exceptions.

If a drone operator is engaged in "a business or professionlicensed by the state [of Florida]," then those operations areexpressly carved out of the statutory prohibitions. If such anoperator is using a drone to "perform reasonable tasks" pursuant toits license, then those activities are not prohibited.

The exception to the exception is when that license involvesintentionally gathering information about people. Yes, Floridalicenses private investigators. That means privateinvestigators can't use drones!

Other "carve-outs" include:

• property appraisers using drones in their operations;
• capturing images for electric, water, or natural gasutilities;
• for "aerial mapping," as long as the operator follows FAArules;
• for delivering cargo, as long as the operator follows FAArules; and
• to capture images necessary for safe operation of the droneitself (think: flights beyond visual line of sight).

The answer to whether any of those carve-outs conflict with thegeneral prohibition on surveillance is a solid "maybe."

Also, these carve-outs may have left out new, innovative usesfor drone technology that no one has thought of yet. That meansentrepreneurs with new ideas for the industry may find it hard to"get flying" in Florida.

I encourage you to think about what the consequences might befor your business or clients. If you're in Florida, you shouldcontact your legislator to share your opinion! [See the last chapter of mybook for info on how to do that.] That's the way we make changehappen.

Steven M. Hogan practices law at Ausley McMullen in Tallahassee, Fla.,working with companies nationwide that are developing commercialapplications for unmanned aircraft systems. He frequently speaksand writes on the subject of commercial drone technology. His book,The Drone Revolution, was recently published on Amazonand you can claim a free copy of the book at his blog, www.robotic-aviation.com.Mr. Hogan received his law degree from the Florida State UniversityCollege of Law. For additional information about his drone lawpractice, please visit www.dronelawyers.com.