What Size Drone Has To Be Registered In Colorado
Privacy in a Time of Drones
June 2021
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This article discusses potential invasion of privacy and other tort liabilities arising from drone and other unmanned aeriform vehicle activities.
Big Brother has been a concern since Orwell's 1984, simply today it'southward Big Business and the 12-year-old kid next door flying a drone who may pose an equal threat to our privacy.
Drones beget many benefits, some quite extraordinary, including profitable with aeriform mapping, educational activity, real estate and cropland management, urban planning, power line and pipeline inspection, wildfire management, disaster response administration, emergency medicine deliveries, telecommunication, movie filming, journalism, doorstep parcel delivery, refinery monitoring, and recreational fun. 1 They also present some potential societal detriments, serving as accomplices in drug smuggling, terrorism, assassination, and voyeurism. 2 Fifty-fifty their lawful use comes with some invasion of privacy risks. 3
This article focuses on the risks drones present to our confinement and sanctuaries; potential tort liability arising from drone use; remedies for non-governmental invasions of our privacy, person, and identify; and applied considerations that might guide lawyers who work in this novel and evolving field. The commodity briefly describes the history of federal and state drone regulation and preemption issues; discusses the intersection of Colorado privacy, trespass, and nuisance laws and drone activities; and examines the lingering legal uncertainties accompanying drone technology advances.
Tort liability for physical injury to holding or actual injury to persons is beyond this article's scope. Similarly, the commodity does not hash out Fourth Amendment warrant, search, and privacy concerns relating to government drone deployment. iv
Drones Today (and Tomorrow)
Drones are improving technologically at the speed of smartphones, not airplanes. In fact, by the time you read this article, drone engineering science will have advanced significantly since this piece was conceived during the 2020 pandemic summer.
Today'south drones serve as platforms for "intelligent sensor suites, loftier-definition gigapixel cameras, live-streaming media, global positioning systems, facial recognition and biometric programs." five Some drone features are only readily accessible to governmental actors, such every bit the armed services, constabulary enforcement, and their contractors, due to the characteristic'due south toll and technical complexity. Facial recognition has already been integrated into many security camera systems. While drones incorporate a Global Positioning System (GPS) as part of their autopilot mechanisms, their GPS serves the same purposes as that plant in cell phones, although nigh drone GPS systems are more than authentic.
Drone laws volition change every bit drones and their satellite technologies modify. Reality will steer these changes as drones become as ubiquitous equally prison cell phones. 6 In April 2021, an estimated 872,000 drones were in use in the Us, nigh 43% commercially and 57% recreationally, with over 222,000 Federal Aviation Assistants (FAA) certified remote pilots. vii One commentator urges that "there is no other technology that is as accessible to the full general public and poses as tangible a threat to privacy and safety as the drone." 8 Others would debate that this is a gross overstatement and that smartphones and other personal electronic devices, which are widely used and more often than not non feared, pose a much graver privacy threat.
Still, drones the size of insects—micro-aeriform vehicles (MAVs)—outfitted with cameras and microphones are already in use, and not just in James Bond films, 9 although their use is typically express to the armed services due to their cost and complication. Soon nosotros may miss some drones' bothersome whirring, which alerts us to the drones' presence and that we might be filmed or recorded. Flying micro-drones may make noise indistinguishable from flying insects or brand no perceptible audio at all.
Overview of Drone Regulation
Federal, state, and local laws regulate drones and other unmanned aerial vehicles (UAV) and unmanned aircraft systems (UAS). 10 These regulations are likely to evolve, not only in response to drone-related technological progress, but also with experience, as drones become a role of the material of our lives.
Federal Law and Regulations
In the mid-20th century, the US Supreme Court held that for belongings owners to fully bask their land, they "must have sectional control of the immediate reaches of the enveloping atmosphere" and "own[] at to the lowest degree as much of the space to a higher place the footing every bit [they] can occupy or use in connexion with the land." eleven The Courtroom left open up the parameters of these "immediate reaches." Drone technology has brought this event to the fore.
In 2016, the FAA finalized its initial drone regulations, including what is normally referred to equally Function 107. 12 On October 5, 2018, President Trump signed the FAA Reauthorization Human action of 2018 (the Act). 13 Building on the 2016 regulations, the Human action primarily addresses recreational and commercial use of UAVs, including pilot training and FAA remote pilot certification (and waiver of the aforementioned); airspace potency; 14 UAV registration; maximum and minimum tiptop, weight, clearance, speed, and line of sight requirements; limits on operating over other persons; risk-based consensus rubber-standards; and aerodrome safe and air-space hazard mitigation, among other topics. 15 The FAA declined to expand its jurisdiction over safety to cover privacy issues, deferring to existing state constabulary and other privacy protections. sixteen The Act is a work in progress, as industry stakeholders, interest groups, and the federal authorities entrance hall to shape this law through consensus regulation, cartoon on everyday testing and feel.
In January 2021, the FAA released for publication its final remote identification (Remote ID) regulations. 17 Remote ID volition provide information about drones in flight, such as the drone'south unique identity, location, altitude, and command station or have-off location. Authorized public safety organization employees can request the identity of a drone's owner from the FAA. These features may assistance provide answers to questions like, "Where is that annoying buzzing coming from?" 18 While the ordinary person might view this rule every bit offering pushback to a drone led invasion of their privacy, drone operators run across it as an invasion of their privacy. Thus, information technology is expected that any FAA regulations will generally focus on safe, not privacy. 19
Congress has indicated a desire for close cooperation between federal and state authorities over drone regulation. The federal government wants local resources to help enforce federal drone laws. The needs of interstate commerce, and preferences of the Amazon.coms of the globe, volition influence and shape not only federal police force, but likewise whatsoever working partnership between and among land and federal governments. Therefore, tort liability protections are likely to arise.
The Colorado Regulatory Scheme
Colorado presently has no statutes specifically regulating drone activity, although one regulation makes information technology unlawful to utilise drones "to look for, lookout, or detect wildlife as an assistance in the hunting or taking of wild animals." 20 Colorado's "Peeping Tom" law also may apply to some drone-based surveillance. 21 Local ordinances in Aurora, Boulder, Cherry Hills Village, Denver, Louisville, and Telluride govern recreational and/or commercial drone use, and other municipalities are considering adopting their own laws.
Federal and Land Constabulary Preemption
The legal framework for drone use must account for federal preemption of country and local laws, which occurs when: (i) Congress expresses a clear intent to preempt country police; (2) there is an outright or actual conflict betwixt federal and country law; (iii) compliance with both federal and state police is physically impossible; (four) there is an implicit barrier within federal law to state regulation in a particular surface area; (5) federal legislation is so comprehensive as to occupy the entire field of regulation; or (6) state law stands as an obstruction to the accomplishment and execution of Congress'south total objectives. 22 Similarly, Colorado statutes may preempt local constabulary. 23
As drones become more embedded in everyday business and residential life, and their affect on interstate commerce speedily expands, the demand for a compatible regulatory framework and consistent and effective enforcement increases. The potential for conflict amongst federal, state, and local commercial needs and privacy expectations will similarly increase. Industry is likely to button for statutorily explicit or implied preemption of local regulation; this has already occurred with regard to FAA regulation of drone use within certain geographic and altitudinal parameters. Drone operators mutter anecdotally of situations where FAA regulations crave drones to fly below 400 feet, yet some local regulations require them to fly at or to a higher place 500 anxiety. 24
Critically, if Colorado's and other states' statutory and common police remedies for drone intrusion and abuse prove inadequate, people may "take matters into their own hands." 25 And "where the law is perceived equally a fairly blunt tool, people will increasingly resort to self-help remedies." 26 While criminal statutes offer some protection from electronic "listening in," 27 they offer much less protection from "looking in." Presently, there are few piece of cake remedies apropos intrusive drone activity. 28 Because the FAA considers drones to exist aircraft, 18 USC § 32 prohibits damaging or destroying drones, and using a firearm to attempt the same may violate other laws. Similarly, electronically jamming a drone may violate federal law. 29
Colorado Tort Law and Drone Operations
Colorado recognizes various torts for which drone operators may comport civil liability where their drone operations invade or interfere with the privacy or solitude of others. The torts involving invasion of privacy and trespass and nuisance are potentially applicable in addressing rapidly evolving drone applied science.
Invasion of Privacy
Colorado recognizes the tort of invasion of privacy. xxx Iii species of this tort are shortly actionable: invasion of privacy by intrusion, invasion of privacy past public disclosure of private facts, and invasion of privacy by cribbing (Colorado has declined to recognize invasion of privacy past placing a person in a simulated low-cal 31 ). But the first two variations are discussed here as generally relevant to drone monitoring. 32
Invasion of Privacy past Intrusion
To prove invasion of privacy by intrusion, a plaintiff must found that (1) the accused intentionally 33 invaded the plaintiff's privacy, (2) the invasion would be very offensive to a reasonable person, (3) the plaintiff suffered damages, and (iv) the invasion was a crusade of the plaintiff's damages. 34 Just a natural person may assert a claim for invasion of privacy, and other than a claim for appropriation, the right is personal and cannot exist assigned. 35
Invasion of privacy by intrusion does non require concrete intrusion, publicity, or general communication to the public. 36 The essence of the tort is interference with the plaintiff's solitude, seclusion, or individual affairs and concerns. 37 Inbound the plaintiff's premises, electronic eavesdropping or spying, unauthorized admission to the plaintiff's postal mail or electronic mail, or repeated hounding or harassment may satisfy applicable standards. Potential amercement for intrusion include compensation for (1) harm to a plaintiff's privacy interest resulting from the invasion, (2) mental suffering, (3) special damages, and (4) nominal damages if no other damages are proven. 38
A private cause of action is bachelor for violation of federal illegal wiretapping laws, and relief may include adequate compensation. 39 No Colorado instance has thus far recognized such a right nether Colorado's wiretapping constabulary. forty However, Colorado wiretapping and eavesdropping laws may help courts and juries define what constitutes a reasonable expectation of privacy that supports recovery in tort. 41
There is no liability for reviewing publicly available data or observing or photographing someone in a public place. By and large observing and videotaping a plaintiff's premises from outside the holding's perimeter is non an actionable intrusion, fifty-fifty if a high-powered lens is used to magnify the view of what can be readily seen. 42 Typically, a plaintiff must accept a possessory or proprietary interest in the property into which the intrusion is alleged. 43 The interest of a tenant, a hotel invitee, or a storage locker lessee may also provide standing. 44 A "legitimate expectation of privacy" is a key element in evaluating the propriety of the intrusion. 45
Aggrieved parties may allege that drone owners and operators invaded their privacy by a drone listening in, looking in, or but "invading their space." Whether an actionable invasion of privacy has occurred will depend on the circumstances and societal privacy expectations.
Invasion of Privacy by Public Disclosure of Private Facts
To prove invasion of privacy by public disclosure of private facts, a plaintiff must establish that (ane) the defendant made a fact nearly the plaintiff public; (ii) the fact was private before disclosure; (3) a reasonable person would find the disclosure highly offensive 46 ; (4) at the time of the disclosure, the accused acted with reckless condone of the private nature of the fact disclosed (i.e., the defendant knew or should have known that the fact disclosed was not of legitimate concern to the public); (5) the plaintiff suffered damages; and (vi) the public disclosure of the fact was a crusade of the plaintiff'due south damages. 47
Mostly, the disclosure must be of a previously private thing; it cannot involve information that was already public, that was available from public records, or that the plaintiff left open to the public. 48 The public disclosure requires "advice to the public in general or to a large number of persons, every bit distinguished from ane individual or a few." 49 All the same, a defendant may bear liability if it "initiates the process whereby the information is disclosed to a big number of persons." fifty Public disclosure is not highly offensive if it involves the disclosure of normal daily activities or unflattering conduct that causes minor or moderate annoyance. 51
Whether a matter is privileged equally a legitimate public business, and thus its disclosure is allowed from liability, is likely a question of police force for the courtroom, as in defamation cases. 52 Because the public disclosure element involves the correct to circulate true information to the public, it implicates federal and state constitutional freedoms of spoken communication and printing. 53 The Starting time Amendment protects the disclosure of highly offensive private facts if those facts accept "some substantial relevance to a matter of legitimate public involvement." 54 Such matters might include murders and other crimes, suicides, accidents, fires, natural catastrophes, affliction, and other topics of real, even if more bloodcurdling, popular appeal. 55 When a accused raises a First Amendment privilege, the private's right to keep information private must exist balanced against the press's correct to disseminate newsworthy data publicly. 56
Aggrieved parties may criminate that people privy to information accessed by drones invaded their privacy by a drone listening in, looking in, or otherwise gathering information from or about them and and so publicizing those facts. Whether an actionable invasion of privacy has occurred volition depend on the nature of the data, changing societal expectations of what constitutes private data and a highly offensive disclosure of the same, and any free press privileges accompanying such disclosure.
Affirmative Defenses
In addition to the constitutional First Amendment complimentary spoken communication privileges and immunities discussed in a higher place, consent or waiver may serve as an affirmative defense to an invasion of privacy claim. This defense applies if the plaintiff, by words or bear, led the defendant to reasonably believe the plaintiff had authorized or agreed to the defendant's conduct, and the accused acted in a manner and purpose consequent with the scope of such authorization or understanding. 57 While no Colorado case has withal addressed what statute of limitations applies to invasion of privacy claims, the two-year limitations flow in CRS § 13-80-102 for tort claims is a likely candidate.
Remedies
Remedies for invasion of privacy may include statutorily capped non-economic damages for personal humiliation, mental and physical anguish and suffering, inconvenience, impairment of quality of life, reputational injury, and impairment to a plaintiff'southward credit standing, also equally loss of income. 58 Damages for the toll of taking mitigation measures, such as hiring a public relations business firm to help manage or negate the fallout from the public disclosure of private data, may be compensable. 59 Nominal amercement may be properly awarded. threescore In an appropriate example, punitive damages may exist bachelor. 61
Trespass and Nuisance
Trespass and nuisance claims do non direct implicate a landowner'due south correct of privacy, simply the liability exposure they present may discourage privacy intrusions. Trespasses and private nuisances typically involve the invasion of or interference with a person'south individual holding rights, while a public nuisance ofttimes requires a balancing of a property owner'due south versus others' economic interests, weighing the gravity of the harm against the utility of the acquit.
Trespass claims take traditionally been express to the intentional physical entry or intrusion upon or under another'southward property causing physical impairment to the holding, or an intentional intangible intrusion with resulting physical damage, merely (and so far) not but entry into the airspace higher up the property. 62 In contrast, nuisance claims may involve noise, light, shadow, and aroma atmospheric condition affecting another'southward apply and enjoyment of their property without accompanying concrete damage. 63 If drone activity physically damages private property, a claim for trespass likely would accrue and would not require proof of the violation of an applicative standard of care relevant to a negligence claim, because all that is required is an intent to enter or to cause another to enter another's property, or to do an human action that in the natural course of events results in the intrusion. 64
Private Nuisance
A private nuisance is a non-trespassory invasion of some other's interest in individual use and enjoyment of his or her state. 65 To prove a private nuisance, a plaintiff must establish a substantial invasion of a plaintiff's involvement in the employ and enjoyment of his belongings when such invasion is (1) intentional and unreasonable, (two) unintentional and otherwise actionable under the rules for negligent or reckless conduct, or (iii) so abnormal or out of place in its environs as to fall within the principle of strict liability. 66 Stated some other fashion, a nuisance is an intentional, negligent, or unreasonably dangerous activity resulting in the unreasonable and substantial interference with a plaintiff's use and enjoyment of her holding. 67 "To maintain a successful nuisance merits, a plaintiff must establish that the defendant has unreasonably interfered with the use and enjoyment of her property." 68 Unreasonableness is a question of fact that requires the fact finder to weigh the gravity of the damage against the utility of the acquit causing that harm. 69 Mostly, to exist unreasonable, "an interference must exist pregnant enough that a normal person in the customs would find it offensive, annoying, or inconvenient." 70
Public Nuisance
A public nuisance involves "the invasion of public rights, that is, rights common to all members of the public." 71 In dissimilarity, "[a] private nuisance is a tort against land and the plaintiff's actions must e'er be founded upon his involvement in the state." 72 Public nuisance suits are typically brought by governmental bodies seeking injunctive relief and often are based on a statutory prohibition. 73
Aerial Trespass and Nuisance
"Aeriform trespass" assumes a property owner's possessory correct to some portion of the airspace above the owner's property. Before long, whether an aerial trespass has occurred and is actionable depends on how courts construe Colorado's applicative statute and its common constabulary of trespass, and whether and how federal law and regulations might preempt these laws.
CRS § 41-1-107 provides that "[t]he ownership of infinite in a higher place the lands and waters of this state is declared to exist vested in the several owners of the surface below, subject field to the correct of flying of aircraft." Two Colorado cases have considered this statute in the context of claims arising from overflights emanating from Denver International Airport (DIA), only the statute did non have much begetting in either one, and neither case concerned "aerial" trespass or nuisance claims. Still, the cases may offer some insight into how such claims may exist treated in the time to come.
In Claassen v. City and Canton of Denver , the Colorado Courtroom of Appeals addressed a compensation merits by several landowners nether the Colorado and US Constitution'south "takings" and "damaging" clauses arising from aircraft overflying their property while taking off and landing at DIA. 74 The Court held that "navigable" airspace is in the public domain, and the plaintiff landowners had no property rights in the airspace. 75
Because the overflights occurred, generally, more 500 feet in a higher place the plaintiffs' property per FAA regulations, the trial court ruled that "there had been no physical entry into plaintiffs' holding and no physical ouster of the plaintiffs from their property." 76 And because CRS § 41-1-107 subjects the ownership of airspace past landowners to the "rights of flight of shipping," Claassen applied FAA "minimum safe distance" regulations for "uncongested areas" to resolve the plaintiff'south claims. 77
The Court stated that "absent a physical invasion into the airspace higher up plaintiffs' property that is below the navigable airspace, in that location can exist no physical taking within the meaning of Colo. Const. art. Ii, § 15." 78 It held that "considering plaintiffs had no protected belongings involvement in the navigable airspace in which the aircraft here flew, the trial court correctly found that plaintiffs had sustained no compensable concrete taking within the meaning of the federal and state constitutions." 79
The Courtroom besides addressed plaintiffs' contention that the overflights damaged their property by "creating noise, pollution, and vibration" on the property, interfering with the use and enjoyment of their holding and causing its diminution in value. 80 The Court held that because the alleged damages "did not differ in kind from those suffered by the public in general," they were not compensable. 81 But the Court remanded plaintiffs' 5th Subpoena claims to the trial court for consideration after they had been previously dismissed as non ripe for review.
Thompson v. City and County of Denver involved claims for inverse condemnation, due to excessive racket and vibrations, by a landowner living beneath DIA flight paths. 82 The Colorado Court of Appeals found that the "landowner's belongings involvement in the land extends to the airspace direct over the property to the extent that the airspace can be used to do good the underlying land." 83 Yet, it noted that because Congress had placed navigable airspace in the public domain, the surface possessor'southward "holding interest in airspace to a higher place the land is generally limited to that airspace which is beneath navigable limits." 84
The Thompson Court held that for Fifth Amendment "takings" purposes, only "frequent and depression flights by aircraft, directly over private land, beneath 500 anxiety . . . that cause substantial, straight, and immediate interference with the belongings possessor'southward enjoyment and employ of the land, are takings." 85 The Court affirmed the judgment for defendant, finding that "considering plaintiffs had no protected property involvement in the navigable airspace in which the shipping here flew, the trial court correctly plant that plaintiffs had sustained no compensable concrete taking within the significant of the federal and state constitutions." 86
If drones are treated every bit shipping, their freedom of flight should track that of commercial and private aircraft. However, FAA regulations require drones to fly beneath navigable airspace (not more than 400 feet from ground level) for safety and other reasons. 87 This means that there is a 400-foot zone between ground level and the authorized ceiling where federal regulations require drones to wing that may encroach on a landowner's "buying of infinite above the lands . . . subject area to the right of flight of aircraft." 88
Thus, many questions persist as to when drone performance might plant an actionable trespass or nuisance. 89 The Uniform Law Commission sought to initially redefine property rights past drafting a rigid per se aerial trespass rule that "cuts the commercially exploitable airspace in half, potentially stifling innovation if adopted." 90 Manufacture reacted unfavorably to that draft and its subsequently revisions, and none of the proposed rules was adopted. 91
Limits of Tort Law in the Face of Evolving Drone Technology
Colorado's common constabulary torts of trespass and intrusion upon seclusion are largely premised on the proximity of the wrongful acquit to private holding. However, drones tin operate at significant distances from their targets in about undetectable mode. 92 This undetectability may effectively preclude some claims, and so as presently conceived, Colorado tort law may need to evolve to address 21st-century drone activity wrongdoing. Areas ripe for reexamination include how Colorado police force treats the airspace to a higher place private property. For case, a statute or judicial decision could create a privacy "chimera," extending private property rights into this airspace and imposing liability for remote sensory intrusions into that bubble. But ironically, while personal expectations of privacy may expand in light of enhanced remote sensing devices, societal expectations of privacy may diminish due to the sharing culture reflected by the proliferation of social media, the gig economic system, the voluntary submission to location and data assemblage services, and people consciously leaving electronic footprints of their daily routines. 93
A tortfeasor's intent in an invasion of privacy case may also demand to be reconsidered. Loftier-tech drones may take extremely high-resolution photos of high-rising bedroom windows, capturing some residents in flagrante delicto, just without any intent to view, use, or disseminate the images. How should such conduct be addressed? And in shaping the future of tort constabulary, courts will need to consider the extensive statutory, regulatory, and best practices drone operations framework likely to develop over time. 94
Some Thought Experiments
It is helpful to consider the post-obit actual or potential drone characteristics to place where the problematic intersections of tort law and technological advances in drone technology may be constitute:
- Drones the size of gnats emit no noticeable sound and can take high-resolution photographs and brand low-decibel recordings.
- Drones can intercept wi-fi signals within a dwelling house and conduct thermal imaging.
- Drones can take high-resolution photos, collect directional depression-decibel sound recordings, and conduct and collect remote infrared sensor data and images through walls, from depression-space altitudes.
- Some drones are linked to facial recognition programs.
- Interconnected drones can rails people and cars en masse.
- Landed drones are able to direct lasers at windows from a bang-up distance and detect and tape conversations within.
Do whatever of these activities constitute an invasion of the property owner's privacy? As to each, should it matter to establishing an invasion of privacy merits if the data is simply anonymized, collated, and shared with third parties?
Issues lawyers might consider from a consumer-customer perspective include:
- When requesting delivery, practise consumers implicitly waive certain privacy rights? Are express average waivers of such rights enforceable?
- Most of us are used to receiving digital images of delivered packages on our front steps. May the retailer or delivery service too visually or aurally monitor and catalogue the recipient'southward home and abode-related information, and so amass and/or sell the information? 95
- Even if a retailer's use and storage of a drone's image and sound recordings are proper and regulated, what if hackers commandeer these systems for their own nefarious uses? Should retailers and commitment vendors have steps to forestall such efforts and, if so, how all-encompassing should their obligation exist?
Issues lawyers might consider from an industry perspective are:
- Should consumer contracts include waivers of privacy rights and/or liability limitations associated with a concern'south drone employ, and indemnity against claims brought by other household occupants?
- Should consumer contracts require the consumer to consent to sure types of surveillance as a condition to receiving services that utilize drones?
- Should businesses who apply third parties to supply them drone services insist on indemnity from those 3rd parties against drone-related liabilities?
- Should businesses obtain liability insurance that covers potential invasion of privacy and trespass/nuisance exposures for drone-related activities? (Such insurance is discussed in more detail below.)
The Future of Privacy Law
As engineering and reasonable expectations of privacy change, so does the police force. Inside the last decade the US Supreme Court held that the Constitution's prohibition against unreasonable governmental searches originating in 1791 96 extends to a police force enforcement officer'south placement of a GPS tracking device in a car. Compared to GPS, the "breadth and scope of information that tin can exist amassed by aerial surveillance tracking large numbers of people is far greater." 97 Every bit drone technology advances, privacy law will be shaped by and evolve with these changes. 98
Liability Insurance Coverage
Assuming some drone activities lead to tort liability, current liability insurance policies may offering protection, while future policies may be tailored to expand this protection. Nigh electric current commercial general liability (CGL) policies include coverage for "personal injury," every bit distinguished from "bodily injury." Typically, personal injury is defined to include "invasion of the correct to privacy" and "wrongful entry," merely such coverage is subject to various exclusions for, amid other things, knowing violations of the rights of others, intentional harms, contractual liabilities, and criminal acts. 99 These terms usually are not further divers, and then courts will give them the broadest reasonable construction favoring coverage. 100
The Colorado Court of Appeals has held that an insured who tape-recorded a sexual see committed an intentional tort, and allegations of negligent invasion of privacy will non avert an insurance policy'due south intentional harm exclusion. 101 It may seem odd that an insurance policy would confer coverage for invasions of privacy merely exclude coverage for intentional harms, where most privacy claims crave proof of intentional acquit. Nevertheless, such coverage was non deemed illusory in the context of a claim arising from an insured'southward declared apply of a date-rape drug. 102
Determination
Advances in drones and other UAVs, computer hardware and software, data aggregation, nano-electronics, remote sensing, acoustics, digital imagery, disc storage, and more are constantly occurring, if not accelerating. These developments, when combined with a legal organization that is regularly playing catchup with technological progress 103 and existence employed against a background of ubiquitous boilerplate contracts and unread waiver/consent forms, heighten a lot of uncertainty. Land and federal regulations may assist curb drones from intruding into our individual worlds, only they may also stifle drone innovation. Drone delivery services can be expected to secure, buy, lease, or license overflight rights above public and private property. The police will no incertitude evolve and seek to strike a balance among competing concerns.
In the meantime, before y'all click on "I have all terms and atmospheric condition" for your first Walmart, Amazon, or Zappos drone delivery, you may desire to consider the words of an infamous paranoiac: "I trust no i, not fifty-fifty myself." 104
Related Topics
Notes
1. See by and large Ravich, "Privacy Law in the Drone Age: Lowering (Reasonable) Expectations," vol. 37, no. v GPSolo 13, 14 (Amer. Bar Assoc. Sept./Oct. 2020).
2. Come across Brobst, "Enhanced Civil Rights in Home Rule Jurisdictions: Newly Emerging UAS/Drone Utilise Ordinances," 122 W. Va. L. Rev. 741, 742 (2020) ("UAS accept already become tools of regime warfare, criminal trespass, and invasions of privacy past both individual and regime entities."). See also Prince Harry v. John Doe 1, Complaint for Invasion of Privacy (L.A. Sup. Ct.—West Dist., July 23, 2020), https://deadline.com/wp-content/uploads/2020/07/harry-meghan-complaint-wm.pdf; Corn, "The Legal Aspects of Banning Chinese Drone Technology," Lawfare (Feb. 4, 2021) (noting that the globe's largest drone manufacturer is Dajiang Innovations (DJI) and alert of "the visitor'southward potential cooperation with, or at least susceptibility to, Chinese espionage efforts"), https://www.lawfareblog.com/legal-aspects-banning-chinese-drone-technology.
3. Come across generally Farber, "Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts equally Applied to Drones," 33 Ga. St. U. Fifty. Rev. 359, 362 (2017) ("These aerial observers enable operators to gather information about people and places via cameras, live video-streaming capability, and sensory-enhancing technologies that can be mounted to the drone. Once collected, information tin can be stored forever and broadly disseminated electronically."). Private investigators might use drones for surveillance of persons, which could expose lawyers who hire them to potential civil liability. See Plesko, "On the Upstanding Utilise of Private Investigators," 92 Denv. 50. Rev. 157, 160 (May 2015). Yet drones might also enhance privacy by detecting trespassers and intruders, and, perhaps, even identifying spying drones.
four. de Pascale Jr., "Path to Dystopia: Drone-Based Policing and the Fourth Amendment," 34 Crim. Merely. 26, 29 (2020) ("most every land has at least one public rubber agency with drones, but well-nigh have no relevant regulations in place"). In some instances, drone restrictions may implicate Start Amendment concerns. See Brobst, supra annotation ii at 773–74 (Ag-Gag laws may exam the limits of the "First Subpoena rights of journalists and activists to surveil and reveal injustice," while artistic (using drones to brand art) and religious expression (sure conventionalities groups consider recording certain sites sacrilege) rights may be implicated besides).
5. Ravich, supra note one at xiv.
half dozen. Run into Farber, supra note three at 360 ("There are endless civil applications for drones, and the possibilities will go along to abound at fifty-fifty higher rates equally the applied science develops and becomes more attainable to the public"). See as well O'Dorisio, "The Current State of Drone Law and the Future of Drone Delivery," 94 Denv. L. Rev. Online 1 (2016) (cataloguing predicted economic impacts equally the drone industry evolves).
7. FAA, UAS by the Numbers (2021), https://www.faa.gov/uas/resources/by_the_numbers.
eight. Farber, supra note three at 379.
9. Liberatore, "From guns that shoot around corners to mini spy-drones: The James Bond-way gadgets that are REAL that Q never dreamt of," Daily Mail.com (Apr. fourteen, 2017), https://www.dailymail.co.uk/sciencetech/commodity-4412712/The-existent-life-gadgets-James-Bond-south-Q-never-dreamt-of.html. In addition to being depicted in film, filming from drones has captured some of the Bond franchise's about iconic action scenes. Or consider drones that look like birds, or drone swarms, each collecting publicly available data, creating a public-private surveillance state. See Andersen, "The Panopticon is Already Here," Atlantic Monthly (Sept. 2020), https://world wide web.theatlantic.com/magazine/annal/2020/09/prc-ai-surveillance/614197.
10. Presently, the term "unmanned" is a chip misleading as almost no drones operate fully autonomously. Come across McNeal, "Drones and the Future of Aeriform Surveillance," 84 Geo. Wash. Fifty. Rev. 354, 366 (2016). The term "unmanned" every bit used by the FAA means at that place is no ane on board to direct the aircraft. It offers little helpful meaning in the context of a UAS.
11. United states of america v. Causby, 328 U.S. 256, 263–64 (1946). Causby rejected the aboriginal doctrine of cujus est solum, ejus est usque advertizement cœlum, pregnant roughly "to whomsoever the soil belongs, he owns also to the sky and to the depths," as having "no place in the modern earth." Id. at 260–61. Causby effectively divided navigable airspace into two domains: a "public highway" from which property owners could not exclude flying shipping; and the airspace below, extending down to the surface, from which property owners had some right to exclude aircraft. See McNeal, supra notation x at 380. Colorado, by statute and example law, adheres to the mutual law rule. Run into People v. Emmert, 597 P.2d 1025, 1027 (Colo. 1979) (holding that the public has no right to use "waters overlying private lands for recreational purposes" without the owner'due south consent, id. at 1030).
12. Functioning and Certification of Small Unmanned Aircraft Systems, 14 C.F.R. Parts 21, 43, 61, 91, 101, 107, 119, 133, and 183. Come across https://www.faa.gov/uas/media/RIN_2120-AJ60_Clean_Signed.pdf.
xiii. 115 Pub. Fifty. 254, 132 Stat. 3186 §§ 351–52, calling for investigation into modification of 14 C.F.R. § 107, which governs drone activities, and codification in role at 49 USC § 44802.
fourteen. In Grade K (Uncontrolled) Airspace, an shipping (such as a UAV) may exist flown from the surface to non more 400 feet higher up footing level and must comply with all airspace restrictions and prohibitions. See FAA Advisory Circular 91-57B at § 7.1.six (May 31, 2019), https://world wide web.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-57B.pdf. UAVs cannot wing in controlled airspace without an FAA potency. Id. at § seven.1.v.2.
fifteen. Many of these limitations accept been criticized as arbitrary and unmoored from the realities of this new and expanding technology, especially with regard to package delivery. Meet O'Dorisio, supra note six at 4–v.
16. Ravich, supra annotation 1 at fifteen.
17. 86 Fed. Reg. 4390 (Jan. 15, 2021), https://www.govinfo.gov/content/pkg/FR-2021-01-15/pdf/2020-28948.pdf.
18. Sound emitted by some drones is not readily perceptible. And drone-mounted lasers, effective from miles away, can theoretically axle invisibly onto windowpanes and capture conversations inside remotely, if the drone is powered downwards sufficiently to eliminate airframe vibration and resulting interference.
nineteen. Kohler, "The Sky is the Limit: FAA Regulations and the Future of Drones," 15 Colo. Tech. Fifty. J. 151, 174–75 (2016) (drone privacy concerns generally accept been addressed at the land and local level). Ane commentator urges that drone-specific privacy regulations volition be cumbersome, unworkable, and stifle innovation. See mostly McNeal, supra note ten at 415. Instead, he proposes broader information collection, storage, and dissemination regulation, combined with accountability, transparency, and oversight measures. Id. at 416.
20. 2 Colo. Code Regs. § 406-0-4-004(C). In 2017, CRS § 24-33.5-1228 was amended to create a Colorado firefighting air corps to "[e]stablish and back up a Colorado wildland burn prediction and determination support arrangement," CRS § 24-33.v-1228(two.five)(b)(4), and to create a "heart of excellence" to "carry a report concerning the integration of unmanned aircraft systems within state and local regime operations that relate to certain public-safety functions," CRS § 24-33.5-1228(2.5)(c)(I). Drone operations are non permitted in Colorado ski areas or national parks and do not appear to be permitted in Colorado state parks. See 2 Colo. Code Regs. 405-1-ane-100(C)(24), Parks and Outdoor Recreation Lands: Ch. p-1, § 100-C.24 ("It shall be unlawful to operate radio-controlled and/or fuel-propelled models, except in designated areas."), https://cpw.country.co.us/Documents/RulesRegs/Regulations/ChP01.pdf. Department of Homeland Security regulations may affect drone utilize near reservoirs, military installations, and the like. Bills defining criminal trespass past and harassment with drones (HB 15-1555), limiting law enforcement use of drones (HB 15-059), flying drones near airports and correctional facilities (HB sixteen-1026), and prohibiting drones from interfering with public prophylactic operations (HB 18-1314) have all died in committee. In contrast, one author notes that "two-thirds of all states take enacted drone-specific laws"; 26 states have passed drone legislation addressing privacy concerns, including warrant requirements; and xix states have adopted "drone-specific laws providing privacy protections from non-government actors." Ravich, supra note 1 at 15. Several of these states merely extended their existing privacy, voyeurism, and trespass laws rather than passing new stand-alone drone laws. Id. at xvi. For an updated list of states adopting drone regulations, come across Nat. Conf. of State Legis., Current Unmanned Aircraft State Police Landscape (January. 20, 2021), https://www.ncsl.org/research/transportation/electric current-unmanned-aircraft-land-law-landscape.aspx. Specifically, Florida has a comprehensive statutory scheme regulating drones, which includes a private right of action for damages for violations. See Fla. Stat. § 934.50. Some states, like Nevada, practice non let drones to enter airspace inside 250 anxiety above private property. See Nev. Rev. Stat. §493.103(i). Other states' laws include altitude restrictions, requirements that operators ever maintain a line of sight with the device, and proscriptions against nighttime utilise. See generally US Drone Laws: Overview of Drones Rules and Regulations in The states by Land (911 Security June 2019), https://world wide web.utsystem.edu/sites/default/files/offices/police/policies/USDroneLaws.pdf. And many states have adopted laws rendering criminal sure drone activities. Id.
21. See CRS § 18-3-405.6.
22. See Dep't of Health v. The Factory, 887 P.2d 993, 1004 (Colo. 1994) (describing federal-state preemption analysis).
23. Come across Webb v. Urban center of Black Hawk, 295 P.3d 480, 486–87 (Colo. 2013) (describing state-local preemption analysis).
24. Compare FAA Role of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet (Dec. 17, 2015) ("State and local restrictions affecting UAS operations should be consistent with the all-encompassing federal statutory and regulatory framework pertaining to control of the airspace . . . ."), https://www.faa.gov/uas/resource/policy_library/media/UAS_Fact_Sheet_Final.pdf, with Fort Collins Mun. Code Art. IX, § 23-193(d)(iii) (unlawful to "fly lower than five hundred (500) feet higher up a natural expanse, whatsoever type of aircraft,. . . ."). The FAA requires drones to fly lower than 400 feet in controlled airspace. Meet 14 C.F.R. § 107.51.
25. Farber, supra note three at 365.
26. Id.
27. Run into CRS § 18-9-303, 304 (generally, using an electronic device to listen to or record a phone line or individual conversation or advice, or doing then while not visibly present, without the consent of at least one participant, is a crime, with certain statutory exceptions). Adventitious interceptions are not a crime, only it appears that such comport may become criminal if the listener persists. A person who "[m]nowingly uses any apparatus to unlawfully practice, or crusade to be done, any act prohibited by the statute or aids, authorizes, agrees with, employs, permits, or intentionally conspires with any person to violate" the statute is liable equally well. CRS § 18-9-303(1)(f).
28. Stalking (CRS § 18-3-602) and harassment (CRS § 18-9-111) laws may offering help. Reports also can be made to a local FAA Flight Standards Commune Office. Drone operators can exist fined if they violate FAA rules. Ane drone pilot was fined $182,000 for multiple violations. See Rattigan, "FAA Fines Drone Pilot $182,000," JDSupra (Dec. 24, 2020), https://world wide web.jdsupra.com/legalnews/faa-fines-drone-pilot-182-000-27676.
29. Meet 47 USC § 302a(a).
30. Run into Rugg 5. McCarty, 476 P.2nd 753 (1970), and Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 376–79 (Colo. 1997). Meet also Warren and Brandeis, "The Correct to Privacy," 4 Harv. Fifty. Rev. 193, 195 (1890) (article generally viewed as prompting recognition of the tort of invasion of privacy and warning that "numerous mechanical devices threaten to make good the prediction 'what is whispered in the closet shall be proclaimed in the firm-tops.'"). Cf. Warden v. Hayden, 387 U.S. 294, 323 (1967) ("the private should have the freedom to select for himself the time and circumstances when he volition share his secrets with others and decide the extent of that sharing") (Douglas, J., dissenting). While thus far Colorado's ceremonious privacy protections take derived from the common law and the US Constitution, some have suggested that arguments may exist for finding a right to privacy in Colorado'due south Constitution. See McAdam and Webb, "Privacy: A Common Police and Constitutional Crossroads," forty Colo. Law. 55 (June 2011).
31. Denver Publ'g Co. v. Bueno, 54 P.3d 893 (Colo. 2002).
32. See CJI-Civ. 28:4 for more information on invasion of privacy past appropriation.
33. A defendant intends to invade some other'due south privacy if it knows that its "conduct will near certainly cause an invasion of privacy." CJI-Civ. 28:3. A reckless invasion is insufficient. Fire Ins. Exch v. Sullivan, 224 P.3d 348, 352 (Colo.App. 2009).
34. CJI-Civ. 28:ane.
35. McKenna v. Oliver, 159 P.3d 697, 700 (Colo.App. 2006) (describing elements).
36. See Doe v. High-Tech Inst., Inc., 972 P.2d 1060 (Colo. 1998).
37. Id. at 1067.
38. Id. at 1066.
39. See 18 USC § 2520.
40. Run across CRS § 18-9-303(one)(a). Cf. Quigley 5. Rosenthal, 327 F.3d 1044, 1073 (10th Cir. 2003) (interception of individual phone conversations qualifies as an intentional intrusion into one's seclusion or solitude, but the later on utilize of the intercepted chat would not found a further intrusion subsequently the interception was complete).
41. Cf. People 5. Lesslie, 939 P.2d 443, 446 (Colo.App. 1996) (finding that bar restroom occupants in proximity to listening device had objectively reasonable expectation of privacy and stating that whether a legitimate expectation of privacy exists in a particular case depends on the "facts and circumstances, with the actual expectation manifested by a party being a question for the factfinder and the objective reasonableness of the expectation being determined for the detail circumstances as a matter of law").
42. Sundheim five. Bd. of Cty. Comm'rs, 904 P.2d 1337, 1351 (1995) (invasion of privacy tort claim brought against canton commissioners arising from county hiring individual investigator to surveil plaintiffs' holding for zoning violations), aff'd on other grounds, 926 P.second 545 (Colo. 1996).
43. Id. at 1350.
44. Id. (providing examples of who can consent to a property search, only also noting that "mere ownership" may non suffice, citing People v. Breidenbach, 875 P.2nd 879 (Colo.1994)).
45. Id. (citing People 5. Oates, 698 P.2d 811, 814 (Colo. 1985)). Oates discussed this test in the context of evaluating the reasonableness of the warrantless placement of a beeper in a pulsate of chemicals allegedly used to manufacture drugs. The Court held that "any governmental action intruding upon an action or area in which i holds such an expectation of privacy is a 'search' that calls into play the protections of the Colorado Constitution." Oates, 698 P.2d at 814. Oates also held that "[w]hether an expectation of privacy is 'legitimate' is determined by a ii-function inquiry: whether one really expects that the area or activity subjected to governmental intrusion would remain costless of such intrusion, and whether 'that expectation is one that order is prepared to recognize as reasonable.'" Id. (quoting People v. Sporleder, 666 P.2d 135, 140 (Colo. 1983)).
46. "Highly offensive" ways that the disclosure would cause emotional distress or embarrassment to a reasonable person, and such decision is usually a question of fact. Ozer, 940 P.second at 377–78.
47. Id. at 377 ("facts related to an private's sexual relations, or 'unpleasant or disgraceful' illnesses, are considered private in nature and the disclosure of such facts constitutes an invasion of the individual's right of privacy"). Come across also CJI-Civ. 28:5.
48. Ozer, 940 P.second at 377–79. Come across also CJI-Civ. 28:5, Notes on Apply ¶ 6 (citing Restatement (Second) of Torts § 652D cmt. b (Am. L. Inst. 1977)).
49. Ozer, 940 P.2d at 377.
50. Id. at 379 n.7.
51. Run into id. at 378. See also CJI-Civ. 28:9.
52. Run across, east.grand., Walker 5. Colo. Springs Lord's day, Inc., 538 P.2d 450, 459 (1975), overruled on other grounds by Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982).
53. See generally Cox Broad. Corp. v. Cohn, 420 U.S. 469, 489 (1975). Run into as well Ozer, 940 P.2nd at 378 (privacy rights may clash with free speech and gratis press rights guaranteed past the The states and Colorado Constitutions). Something is newsworthy if the information disseminated is for "purposes of education, amusement or enlightenment," and "the public may reasonably be expected to take a legitimate interest in what is published." Id. (citing Gilbert v. Medical Econs. Co., 665 F.second 305, 308 (10th Cir. 1981) (quoting the Restatement (Second) of Torts § 652D cmt. j (Am. L. Inst. 1976))).
54. Ozer, 940 P.2d at 378.
55. See CJI-Civ. 28:5, Notes on Use ¶ six (citing Restatement (Second) of Torts § 652D cmts. d–f (Am. 50. Inst. 1977)). Even with regard to such matters, however, there may be some intimate personal details that a plaintiff is entitled to keep private. Id. at cmt. h.
56. Grund et al., 7A Colo. Personal Injury Exercise—Torts and Insurance (Colo. Practice Series) § 33:nine (Thomson West 3d ed. 2020).
57. Come across Borquez v. Robert C. Ozer, P.C., 923 P.2d 166, 175–76 (Colo.App. 1995), aff'd in part, rev'd in part on other grounds, 940 P2d 371. See CJI-Civ. 28:13.
58. See Doe v. High-Tech Inst., Inc., 972 P.second 1060, 1066 (Colo.App. 1998). See as well CJI-Civ. 28:14, Notes on Use ¶ 6 (citing CRS § 13-21-102.5).
59. Come across Gundersons, Inc. v. Tull, 678 P.2d 1061, 1065 (Colo.App. 1983) (plaintiff entitled to recover as consequential damages expenses and other costs incurred in taking reasonable steps to mitigate damages), aff'd in role, rev'd in part on other grounds, 709 P.2d 940 (Colo. 1985).
60. See Doe, 972 P.2nd at 1066.
61. Run into CRS § 13-21-102 (where injury "is attended past circumstances of fraud, malice, or willful and wanton conduct," exemplary damages may be awarded).
62. Come across Burt 5. Beautiful Savior Lutheran Church, 809 P.2nd 1064, 1067 (Colo.App. 1990) (describing elements of claim); Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 390–91 (Colo. 2001) (holding that considering intrusion of electromagnetic fields, radiation waves, and noise emitted from power lines do non crusade physical damage, they volition not back up a trespass claim). Encounter also CJI-Civ. 18:ane. Geophysical trespasses are actionable. Meet Mallon Oil Co. five. Bowen/Edwards Assocs., Inc., 965 P.2d 105, 110 (Colo. 1998). Run across also Restatement (2d) of Torts § 158, cmt. i (Am. L. Inst. 1965) ("The actor, without himself entering the state, may invade another's interest in its exclusive possession past throwing, propelling, or placing a affair either on or below the surface of the land or in the air space above it." (Emphasis added), cited with approval in Pub. Serv. Co. of Colo., 27 P.3d at 389).
63. See, e.g., Woodward v. Bd. of Dirs. of Tamarron Donkey'northward of Condo. Owners, Inc., 155 P.3d 621, 629 (Colo.App. 2007) ("noise can be a nuisance"); Wright v. Ulrich, 91 P. 43, 44 (Colo. 1907) (harmful noises and stenches emanating from shambles constituted a standing nuisance); Krebs v. Hermann, 6 P.2d 907, 909 (Colo. 1931) (upholding nuisance claim against kennel whose offensive odors and barking dogs deprived plaintiff and his family of sleep); Staley v. Sagel, 841 P.2d 379 (Colo.App. 1992) (affirming damages judgment for past impairment of quality of life on nuisance claim based on effects of dust, smell, and waste disposal from neighboring hog subcontract); Davis v. Izaak Walton League of Am., 717 P.2d 984, 986 (Colo.App. 1985) (affirming judgment against shooting range under public nuisance noise statute); Nw. H2o Corp. v. Pennetta, 479 P.2d 398 (Colo.App. 1970) (alleged noise when tank filled or emptied may support nuisance claim).
64. Encounter Miller 5. Carnation Co., 516 P.2nd 661, 664 (Colo.App. 1973); Antolovich five. Brown Grp. Retail, Inc., 183 P.3d 582, 603 (Colo.App. 2007). See also CJI-Civ. eighteen:one.
65. Allison five. Smith, 695 P.2d 791, 793–94 (Colo.App. 1984).
66. Van Wyk, 27 P.3d at 391 (citing Restatement (Second) of Torts § 822).
67. Id.
68. Id.
69. Id.
70. Id.
71. Hoery v. United States, 64 P.3d 214, 218 n.5 (Colo. 2003).
72. Id.
73. Run into generally Grund et al., supra note 56 at § 31:ii.
74. Claassen v. City and Cty. of Denver, thirty P.3d 710 (Colo.App. 2000).
75. Id. at 712–thirteen.
76. Id. at 712.
77. Id. at 713. For "congested" areas, FAA regulations prohibit flights lower than ane,000 feet. See fourteen C.F.R. § 91.119(b).
78. Claassen, 30 P.3d at 713.
79. Id. at 713.
80. Id.
81. Id. at 714 (relying in part on an earlier example alleging similar complaints near tramway operations).
82. Thompson 5. City and Cty. of Denver, 958 P.2d 525 (Colo.App. 1998).
83. Id. at 527.
84. Id. at 528.
85. Id.
86. Id.
87. Run into 14 C.F.R. § 107.51. Some exemptions are available under the Federal Aviation Assistants Modernization and Reform Act of 2012 § 333 to operate a drone in controlled airspace.
88. See CRS § 41-1-107.
89. But see Cullers, Drone Flyover a Trespass Under Colorado Law, Herms & Herrera, LLC, https://hhlawoffice.com/colorado-drone-trespass (terminal that "someone flying a drone over some other's property without permission beneath the [FAA] navigability threshold likely commits a trespass under Colorado law."). See also Phillips, Trespass, Nuisance and Privacy: More Questions than Answers? at 6-eighteen Steptoe & Johnson Whitepaper (collecting statutes that may bear on whether sure drone activity might exist actionable), https://www.steptoe-johnson.com/sites/default/files/Trespass,%20Nuisance%20and%20Privacy.pdf. Cf. Wennogle, "Drones and utility easements: Who has the airspace rights?," Colo. Real Est. J. (Sept. 2, 2015) (suggesting that easement holders, such as utility companies who wish to inspect their powerlines with drones, may have significant leeway to do so pursuant to their existing easement rights because the constabulary has historically contemplated a certain corporeality of normal evolution in such rights with changing times and technologies, but which still requires a balancing of interests between the easement holder and the burdened estate), http://world wide web.signatureflip.com/sf01/article.aspx/?i=6856.
90. See more often than not Watson, "Maximizing the Value of America's Newest Resource, Low-Altitude Airspace: An Economic Assay of Aerial Trespass and Drones," 95 Ind. L.J. 1399, 1400 (Fall 2020).
91. Id. Perchance unwittingly anticipating this concern, Colorado Supreme Court Justice Carrigan dissented in a non-navigable stream trespass case, explaining, "If a landowner, for instance, has the right to all of the air flowing above his or her country, he or she besides has the exclusive right to exclude others from trespassing in the airspace. Violators who borrow that airspace may be prosecuted for criminal trespass (equally in this instance), sued for amercement or both." People v. Emmert, 597 P.2d 1025, 1032 (Colo. 1979) (Carrigan, J., dissenting). In 2020, the American Bar Clan'southward Firm of Delegates adopted Resolution 111, urging various governmental bodies and agencies to protect privacy rights that may be affected by UAS. Reynolds, "ABA Business firm of Delegates passes resolution on drones; delegate calls it 'a hot topic,'" ABA J. (Feb. 17, 2020), https://www.abajournal.com/news/commodity/resolution-111. In 2011, the Professional Society of Drone Journalists was formed with the purpose of "developing small drones and exploring all-time practices for their utilise in investigative, weather, sports, and other types of reporting," equally quoted in Conn, "Who'southward Protecting Whom? An Analysis of the Newest Federal Aviation Administration'southward Unmanned Aerial Vehicle Regulations and Restrictions and their Hindrance to Technological Advocacy," 20 J. Loftier Tech. L. 304, 306–07 (2020) (internal quotations omitted).
92. "Technologies such as wi-fi sniffers, license plates readers, dark vision cameras, facial recognition applied science and other biometric devices, and high-powered telephoto lenses make distance a fairly blunt obstacle to the collection of information." Farber, supra note 3 at 389. Colorado'south Consumer Data Privacy Human activity, CRS §§ 6-ane-713 et seq., requires "covered" entities collecting or monetizing information to apply reasonable and advisable measures to protect Colorado residents' "personally identifiable information," such as biometric data. See generally McIntosh, "Privacy Nuts for Colorado Lawyers: The Colorado Consumer Information Privacy Human activity and the California Consumer Privacy Deed," 48 Colo. Law. 26 (Sept. 2019).
93. See generally Ohm, "The 4th Amendment in a Globe Without Privacy," 81 Miss. L.J. 1309, 1313–20 (2012) (noting that "the one device" + "the cloud" + "the social [media]" + "Big Data" = the surveillance guild, which may lead to the death of privacy).
94. See generally Farber, supra note 3 at 408–09 (describing ongoing regulatory efforts and goals). See also Kaminski, "When the Default Is No Penalisation: Negotiating Privacy at the NTIA," 93 Denv. L. Rev. 925, 935–49 (2016) (discussing drone privacy "best practices" argue and stakeholder concerns with the Dep't of Commerce'southward Nat'l Telecomms. and Info. Admin. (NTIA)'south regulatory model). Per the NTIA, these best practices include practices to "restrict continuous drove of information about individuals, require drone operators to minimize both operations and surveillance over individual property, and encourage drone operators non to share information for marketing purposes without consent." Id. at 939–40. The American Ceremonious Liberties Wedlock and other individual rights advocates criticized these practices for "allowing drone operators to collect private data without consent; allowing persistent, continuous surveillance without consent, even in traditionally private spaces; and allowing the apply of the information for certain purposes without consent." Id. at 940. Some commentators worry that over-regulation may arctic drone innovation and render United states companies less competitive. Encounter, e.chiliad., Conn, supra note 91 at 308; Calandrillo et al., "Deadly Drones? Why FAA Regulations Miss the Marking on Drone Safety," 23 Stan. Tech. L. Rev. 182, 182 (2020) ("the FAA has departed from Congressional volition by imposing an excessive regulatory regime that threatens to stifle drone technology and innovation"; "myriad scientific and pragmatic applications of cutting-edge drone engineering have been stalled or thwarted entirely inside the United States, forcing innovation efforts to move abroad."); and Bateman, "Decentralizing Drone Regulations in Low-Altitude Airspace," B.C. Intell. Prop. & Tech. F. at 1 (Sept. 17, 2020) ("the FAA has compromised domestic drone businesses' ability to compete globally with foreign drone businesses that operate in countries with permissive regulations for commercial drones. . . . States should assert their authority over drone operations in low-distance airspace to accelerate competition in the drone industry and to tailor drone regulation to local preferences for privacy, property rights, and ceremonious liberties concerns.").
95. Angwin, "Dragnet Nation: A Quest for Privacy, Security, and Freedom in a Globe of Relentless Surveillance," 12 Colo. Tech. L.J. 291, 293 (2014) ("We are living in a Dragnet Nation—a globe of indiscriminate tracking where institutions are stockpiling data about individuals at an unprecedented pace."). The author reports one homeowner's concerns about drone surveillance conducted past "a criminal who plans to pause into our business firm or a peeping-tom." Id. at 298.
96. The Fourth Subpoena, adopted in 1791, provides: "The right of the people to be secure in their persons, houses, papers and effects, confronting unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon likely cause, supported by Oath or affidavit, and specially describing the identify to exist searched, and the persons or things to be seized." US Const. Amend. 4.
97. Farber, supra note 3 at 373.
98. Run across United States v. Jones, 565 U.Due south. 400 (2012).
99. Fire Ins. Exch. v. Sullivan, 224 P.3d 348, 351–53 (Colo.App. 2009).
100. See, e.grand., Blackhawk-Key City Sanitation Distr. 5. Am. Guar. and Liab. Ins. Co., 856 F.Supp. 584, 590–91 (D.Colo. 1994), rev'd on other grounds, 214 F.3d 1183 (tenth Cir. 2000) ("wrongful entry" held cryptic so every bit to confer coverage for sewage discharge claims).
101. Fire Ins. Exch. v. Bentley, 953 P.2nd 1297, 1301 (Colo.App. 1998).
102. Sullivan, 224 P.3d at 352–53 (Colo.App. 2009).
103. Farber, supra note three at 364 ("As is frequently the example with any new and prolific engineering, unmanned aircraft is outpacing the law.").
104. Khrushchev, "Khrushchev: Notes from a Forbidden Land," Time-Life at iv (November. 30, 1970) (quoting Joseph Stalin).
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