Back to the Future: Environmental Drones Crash into Constitutional Protections

Summary: New drone technology is offering environmental groups an innovative way to ensure compliance with environmental laws. Drones can collect images at a distance while providing environmental groups with important information about ecosystems or with incriminating evidence of individuals who violate the law. Although drone use can provide benefits to environmental advocates in furthering their causes, drone photographs raise privacy right issues for those who are photographed.

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By Cristina Banahan

Drone use for military purposes is widely debated. Countries such as the United States have used Banahan_Dronedrone technology to eliminate enemies of the state in remote parts of the world. Recently, environmental groups have acquired drones, not for military, but for conservation purposes. Although using drones could help environmental groups vindicate their causes, drones also pose new questions about who should regulate their use and what can be done with the information they gather.

The United Nations Environmental Program simply defines drones as: “an aircraft with the capacity to fly semi or fully autonomously thanks to an onboard computer and sensors”.

Both federal and state authorities can regulate drone technology. The Federal Aviation Administration (FAA) generally regulates all domestic aircraft matters. Section 333 of the FAA Modernization and Reform Act of 2012 sought to regulate drone technology. The Act sets out to make private ownership of drones easier by requiring the FAA to accelerate the process of granting licenses. Furthermore, section 336 of the Act prevents the FAA from regulating model aircraft under 55 pounds or drones used for recreational purposes. The brief section addressing drones is directed primarily at ensuring safety, rather than overarching regulation of Unmanned Aircraft Systems.

Although the FAA and Congress have set out laws regulating drones, the states are passing broader drone regulations. States like Texas have severely restricted the use of images taken by privately operated drones.  House Bill No. 912, gives standing for a civil cause of action to a person that uses a drone to capture an image of a Texas property owner while in her property or of her property. Fines under Texas law run as high as $5,000 for all images captured.  If the images are distributed, the fine can be as high as $10,000. The law enumerates instances where drones may be used to take images without consent on private property. The exceptions include use by energy companies for exploration, and use by law enforcement officers when they have a reasonable belief someone has committed a crime.

In contrast, other states such as Montana have enacted less robust drone regulation. Montana Senate Bill 196 restricts drone use by law enforcement officers. Law enforcement officers can use information collected by drones when the information was collected pursuant to the authority of a search warrant or pursuant to one of the search warrant exceptions. Otherwise, information collected by drones will be inadmissible in court.

Encumbering access to information through drone technology could potentially be found unconstitutional under the First Amendment. The U.S. Department of Justice has recognized the right to videotape police officers while carrying out their duties to ensure accountability of police. Environmental groups can argue that the use of drones would help them monitor loggers, farmers, and corporations to ensure that they are complying with industry standards and environmental laws in a way similar to how the videotaping of police officers helps keep their conduct in check.

Banahan_Drone2However, the First Amendment right of environmental groups to use drone technology to their advantage is at odds with individuals’ right to privacy. Griswold v. Connecticut was the first case where a right to privacy was recognized. The Supreme Court expanded the right to privacy in later cases such as Roe v. Wade. Furthermore, in Sorrell v. IMS Health Inc., the Court held that an individual’s right to privacy includes the right of a property owner, while on her property, to refuse to engage in conversation with unwelcome visitors. A court deciding a case involving information collected by drones could conclude that information collected by drones is tantamount to an unwelcome conversation with ‘a man in his castle.’

For all of the legal challenges and pitfalls that drones pose, they also offer many benefits to environmental groups. One way environmental groups can benefit from drone technology is by collecting evidence of misconduct. If a state does not have a statute regulating drone use, environmental groups can use images collected by drones as evidence of wrongdoing in a court of law.

Environmental groups have announced plans to use drones to monitor areas to begin holding individuals and corporations accountable. The World Wildlife Fund, with financing from Google, will implement ‘remote aerial survey systems’ to increase detection and detention of illegal poachers.

The Nature Conservancy in California has tested drones’ ability to track the Sandhill Crane population. In fact Lian Pin Koh, founding director of Conservation Drones, believes that drones ‘are a game changer that will become a standard item in the toolbox’ for environmental groups. As drone technology becomes more accessible to environmental groups, these groups will be able to better pursue their organizational goals because government inaction will no longer be a hindrance to protecting the species or ecosystem they seek to preserve.

Ultimately society will benefit from environmental groups gaining access to drone technology. Drone technology brings with it the possibility of democratizing environmental enforcement so that individuals, interest groups, counties or countries with sparse resources can monitor illegal activity at an increasingly affordable price. Access to drone technology can allow data collection for any party interested in a more efficient manner than before. Decentralizing data collection will make the job of law enforcement officers faster and more transparent because they will rely on images obtained by a machine that can provide a live stream of the violation. The low cost and increased reliability of information will lower the opportunity cost of protecting the environment that often causes environmental issues to take a back seat to other issues, such as national security and economic growth. In one fell swoop, drone technology promises better protection of the environment and government accountability for its action or inaction.

Banahan_HeadshotCristina Banahan Ferrer is a third year Juris Doctor candidate at Vermont Law School. Before attending law school she was a legislative aid at the Committee on Education, Non-Profits, and Cooperatives in Puerto Rico’s House of Representatives. Ms. Banahan became a legislative aid after graduating from Fairfield University with a double major in Political Science and Modern Languages. She hopes to work on international Climate Change law and policy while enjoying cooking Latin American dishes and travelling to foreign countries.