Florida’s New Drone Law Creates FAA Compliance Confusion

In Drone Law Blog, Florida Drone Law, State Drone Law by Enrico Schaefer1 Comment

Florida Drone Law

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.

Comments

  1. Reply
    Enrico Schaefer

    Here is some language from the Florida surveillance statue:

    (e) “Surveillance” means:
    1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or
    2. With respect to privately owned real property, the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.
    (3) PROHIBITED USE OF DRONES.—
    (a) A law enforcement agency may not use a drone to gather evidence or other information.
    (b) A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

    This is extremely broad language covering most legitimate commercial drone use, authorized under a FAA section 333 exemption. It is an over-broad statute, likely preempted by federal law and the FAA section 333 process.

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