On February 26, 2016, we published our first Drone blog post: FROM PEEPING TOMS TO PEEPING DRONES: Help, Big Brother Government is Peeping in My Backyard. We advised that New York State is presently considering multiple bills all designed to regulate drones and drone users. Further, Suffolk County and the Town of Huntington adopted drone legislation specifically regulating private citizens’ rights to fly drones but specifically exempted itself, the government, from flying drones.
Now, before reading further, consider Justice Brennan’s 1989 dissenting opinion in Florida v. Riley, a Fourth Amendment case upholding the use of helicopter surveillance of marijuana plants, wherein Justice Brennan stated as follows:
“Imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generating any noise, wind, or dust at all—and, for good measure, without posing any threat of injury. Suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses, but also what books they were reading and who their dinner guests were.”
Well, less than thirty years later, and depending on where you live in this great state of New York, this “miraculous tool” now known as a drone, may very well provide the government with the right to hover over your enclosed courtyard or patio to determine if your property, or the use of your property, is compliant with the law.
The Village of Great Neck Estates, located in Nassau County, adopted a local law banning the use of drones unless “any such system, aircraft or equipment [is] operated by or under the authority of any governmental entity.” This broad governmental exemption speaks directly to Justice Brennan’s concern about privacy and just where to draw the line between the right to privacy and the right of the government to conduct surveillance.
The Village of Laurel Hollow, also located in Nassau County, adopted a local law banning drone use by any “person, entity or agency.” Hence, drone use by local government is specifically prohibited in Laurel Hollow.
In our Peeping Tom post, we asked whether a local government could act on a neighbor’s complaint of an illegal apartment by flying a drone over the alleged violator’s property to gather evidence of the resident’s comings and goings. The answer may be that those who live in Great Neck Estates can be surveilled while those who live in Laurel Hollow enjoy greater privacy.
As more municipalities consider drone legislation, the inevitable collision between privacy rights, government use and technology will undoubtedly ascend. We suggest that you take your seat, buckle up and join as we travel from Town to Village in search of the next adopted drone legislation, including legislation recently debated and discussed by the Village of Babylon, located in Suffolk County.
Erin A. Sidaras is Counsel at Farrell Fritz, P.C.