Although the word “privacy” is not found in the United States Constitution, it is a well-established legal principle based in common law and determined through court decisions, to be embodied in the First Amendment right to free speech and assembly, the Fourth Amendment right to be free of unwarranted search or seizure and the Fourteenth Amendment due process rights. Section 1, Article 1,
Section 1 of the California Constitution reads: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Our interest in privacy is deeply rooted in American jurisprudence and is a fundamental principal to life in a free society.
Fast forward … it is a spring morning in Nevada County and the year is 2016. The Federal Aviation Administration has successfully “integrated unmanned aerial vehicles (drones) into the national airspace.”
After rising and still in a bathrobe, I take my morning coffee to the back patio where I enjoy the beauty and peace of my backyard and environs. I have spent years in my garden, creating a special place of beauty and tranquility.
As I listen to the sweet sounds of songbirds and watch them flit back and forth over my wooden bird feeder, there up in the sky I see the first drone of the day. The birds disappear. I watch the drone as it makes an arc not more than 75 feet over my head. It seems to hover and then returns to sweep over my property, and my neighbor’s property, several more times. I no longer feel alone in my garden setting. I am aware that I am not properly dressed for the public. The drone reminds me that I may be watched and photographed by people I do not know, for purposes that remain unknown.
While the new California law (enacted 2015) allows me to sue a drone operator who violates my privacy, I have no way of knowing who is flying the drone, what photos or videos they have taken, and whether the operator will use them for commercial purposes. Besides, to sue anyone, I will have to pay thousands of dollars to an attorney to file the lawsuit, even if I knew who was flying the drone. No matter, my privacy has been violated and my morning’s peaceful reverie has been destroyed.
As an artist, I usually work outside on the deck of my backyard studio. My art is a deeply reflective activity that I enjoy when alone. I am inspired by my natural setting, and I have developed a strong spiritual practice around my art.
But on this day I hear the gentle pulsing whir of another drone creeping across the sky above me on its unknown course, scouting around my neighborhood. Was this drone trespassing over my property? I don’t know the answer, but I do know that my solitude and my creative process is ended, and my peace and privacy have been broken. I have nothing to hide in my backyard sanctuary, but I do have the wish to left alone.
I leave home for my ordinary day’s routine. As I drive to the market, I see a number of other small drones flying over the neighborhood. Are they local realtors videographing properties for the market? Is it that new roofing business, which is photographing homes with an eye to future solicitations and sales? Is it that nice young man who has the aerial photography business? Who is flying them, and for what purposes, remain a mystery.
I visit the park to walk my dog. There are signs that warn “video surveillance” and I take heed. I see yet another drone flying above the park, which is adjacent to a school yard. Is this the video surveillance keeping an eye on me or my dog? Is it a thief checking out an unattended property? Or is it a predator stalking an unsuspecting teenager? We may never know.
In this year 2016, flying drones are now commonplace in Nevada County and throughout the country. Oftentimes you can see them, but some are as small as hummingbirds and remain undetected.
The police drones are outfitted with highly sophisticated equipment including cameras, infrared imaging devices, face recognition systems, license plate readers, electronic interception systems and more. We no longer have any expectation of privacy — whether in public places or over our own property!
It is this futuristic scenario in the light of the massive surveillance programs by the NSA and Homeland Security that prompted the drafting of Nevada County’s “no drone zone” initiative, which is currently being reviewed in Nevada County’s Superior Court.
If the proposal is approved for processing as a ballot initiative, Nevada County voters will then decide whether it should go on the ballot. The proposed ordinance would prohibit private use of drones in Nevada County except with authorization by the FAA. The ordinance would allow for Cal Fire and other agencies to use drones for fire detection and other disasters but would prohibit law enforcement use without a search warrant.
In these times when American citizens are facing pervasive surveillance by their neighbors, by enterprising drone businesses and by government forces, we must speak out and insist upon retaining what civil liberties remain to us, including our traditional rights to privacy. There are some among us who do not wish to live in an Orwellian world of “Big Brother” watching our every move.
In closing, this is directed to the reader who does not want to lose his right “to fly his radio control aircraft in Nevada County.” No worries. The proposed ordinance does not pertain to hobbyist RC aircraft that do not carry cameras, face recognition systems or other sensory equipment.
To get a copy or to learn more about the proposed “no drone zone” ordinance, contact Lorraine Reich at 530-274-1077.
Lorraine Reich is a local attorney who has practiced family law in Nevada County since 1989.