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Criminal and privacy implications of drones

Stacked3This week's Daily Record column is entitled "Criminal and privacy implications of drones."  My past Daily Record articles can be accessed here.


Criminal, privacy implications of drones

Every summer I work on the annual update for the book that I co-author with Judge Karen Morris: Criminal Law in New York. As part of my responsibilities, I review all of the cases about the substantive elements of the crimes to which I’ve been assigned and then write about the implications of the newest holdings.

Of course technology has had an impact on New York’s Penal Law and is discussed in the cases about which I write. Oftentimes, the effects of technology are found in cases addressing aggravated harassment, criminal contempt, or crimes related to privacy rights such as unlawful surveillance. Not surprisingly, as someone who regularly writes about the intersection of law and technology, I am always particularly interested when technological advancements impact criminal law.

That’s why I was so intrigued by a recent news story about the legality of a man’s actions in shooting down a privately-owned drone that was hovering over his property. The drone was owned by his neighbor, who had purportedly flown it over the property with the goal of filming new construction that was occurring on the property.

Interestingly, New Jersey police charged the man who shot the drone with possession of a weapon for an unlawful purpose and criminal mischief. Certainly he damaged property that didn’t belong to him, but the drone that he damaged was being used to, in essence, spy on people and activities occurring on his land. So although he was certainly at fault, there were also privacy issues that were not addressed that were triggered by the use of the drone to obtain views of people and places that would not otherwise be possible absent the use of the drone.

This issue has already cropped up a number of times this year, including reports this summer of people using drones on beaches to obtain up close and personal views of women sunbathers, much to the consternation of said women. In most cases, the Penal Law has yet to be revised to address this type of privacy violation, although in New York, there have been a number of revisions to the Penal Law to address other types of privacy violations made possible through the use of new surveillance technologies.

For example, New York Penal Law Article 240 has been amended and interpreted in recent years to include communications made using the Internet and cellphones. Likewise, Penal Law Article 250 has been substantially revised to include unlawful surveillance occurring through the use of new and sophisticated technologies and now includes:

250.05 Eavesdropping. (E FELONY)
250.10 Possession of eavesdropping devices. (A MISD)
250.15 Failure to report wiretapping. (B MISD)
250.20 Divulging an eavesdropping warrant. (A MISD)

250.25 Tampering with private communications. (B MISD)
250.30 Unlawfully obtaining communications information. (A MISD)
250.35 Failing to report criminal communications. (B MISD)
250.45 Unlawful surveillance in the second degree. (E FELONY)
250.50 Unlawful surveillance in the first degree. (D FELONY)
250.55 Dissemination of an unlawful surveillance image in the second degree. (A MISD)
250.60 Dissemination of an unlawful surveillance image in the first degree. (E FELONY)

Clearly, the Penal Law recognizes the need to protect people from the increasing ability to capture and disseminate information intended to be kept private—and information that would have stayed private but for the use of sophisticated technologies. Unfortunately the Penal Law has not yet caught up with the use of drones for this purpose, which is undoubtedly why the New Jersey man who shot the drone was charged with crimes, while his neighbor was not.

Certainly the wiser course of action would have been to call the police as opposed to destroying the drone with a gun. But even so, the case raises some interesting questions about the future of privacy and the use of drones for surveillance purposes by both private individuals and governmental entities. Only time will tell how our legislators will react to the increasing use of drones for surveillance purposes. Let’s hope they enact measures designed to limit this type of invasive, unauthorized surveillance because privacy rights are more important than ever in today’s highly technologically advanced world.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, intuitive web-based law practice management software for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can bereached at