In May 2015, Florida passed the Freedom from Unwarranted Surveillance Act (“Act”) [FL Statute 934.50], greatly restricting drone usage within the state. Aimed at promoting privacy, the Act prohibits individuals from purposely surveilling privately owned real property OR the owner/occupant thereof. With the Federal Aviation Administration (“FAA”) allowing general civilian drone use and issuing exemptions to allow commercial drone use, many questions are presented for Florida drone operators. Is the Florida Act preempted by FAA regulations? Are Florida drone pilots at risk of being sued? What are your options to ensure legal compliance going into the future? Based upon the novelty of these issues, we can only just start to consider them.
Under the US Code, the FAA has exclusive authority over the US airspace, which prompts the issue of preemption when states like Florida enact restrictive drone regulation. Federal preemption is the concept that federal law is the “supreme law of the land,” meaning that it can prevent conflicting state law from being effective. Currently, the FAA is issuing Section 333 exemptions to allow commercial drone utilization while Florida’s Act seems to contradict that allowance by prohibiting nearly all drone usage. Preemption is evaluated on a case-by-case basis, so for now the Act will stand, but could very well be overturned in the near future.
Until it is determined whether the Act is preempted by federal law, people piloting drones in Florida may be exposed to liability for capturing images of private persons and property. The Act creates a right of action for people who feel their privacy has been violated via drone surveillance images. People suing under the Act could potentially be granted an injunction (court order preventing the pilot from further flying and capturing images) and/or damages (monetary compensation for harm done). What makes these lawsuits so unsettling is that drone pilots could be vulnerable to suit for incidentally capturing private people or property while lawfully filming public property either for civilian or commercial purposes. The risk of liability might deter pilots from flying in Florida even if they are otherwise allowed to by the FAA.
As a Florida drone pilot, there are a few avenues you could take to ensure legal flight going into the future. First, you could file for a Declaratory Judgment, which is a court order stating that your activities are lawful before another party has a chance to sue. Second, you could challenge a lawsuit brought against you on the basis of preemption. Or third, you could contact a DroneLaw.Pro attorney with questions or for assistance in handling your legal needs.
Overall, the true effect of Florida’s Act will likely come to light as the FAA continues to grant exemptions for commercial drone use, which will inevitably include Florida pilots. If you are a Florida pilot struggling to comply with the new Act, please contact DroneLaw.Pro today.