Protecting Homeowners' Privacy Rights in the Age of Drones: The Role of Community Associations

By Farber, Hillary B.; Nodiff, Marvin J. | Fordham Urban Law Journal, July 2017 | Go to article overview

Protecting Homeowners' Privacy Rights in the Age of Drones: The Role of Community Associations


Farber, Hillary B., Nodiff, Marvin J., Fordham Urban Law Journal


ABSTRACT

Homeowners' notions of privacy in their dwellings and surroundings are under attack from the threat of pervasive surveillance by small civilian drones equipped with highly sophisticated visual and data-gathering capabilities. Streamlined rules recently issued by the Federal Aviation Administration ("FAA") have unleashed technological innovation that promises great societal benefits. However, the new rules expose homeowners to unwanted snooping because they lack limits on the distance drones may operate from residential dwellings or time of operations. Indeed, our society should not expect a federal agency to deal effectively with the widely diverse issues of drone technology facing the states, given the different needs of urban and rural communities. The FAA wisely anticipates adopting a multi-layered regulatory framework to address privacy issues. State and local governments, by contrast, are lagging far behind in regulatory efforts, and Fourth Amendment jurisprudence has not kept pace with the privacy issues raised by drones operating in residential areas. Municipalities are best prepared to craft reasonable limitations to safeguard their residents, but few are doing so at the neighborhood level. Fortunately, the sixty-eight million homeowners living in condominium and homeowner associations and cooperatives ("community associations") may look to such quasi-governmental organizations for nimble and responsive action where they live. Community associations have authority and powers similar to municipalities and constitute the level of government closest to homeowners. This Article demonstrates that community associations, home to twenty percent of America's homeowners, constitute the level of government most familiar with characteristics of their neighborhoods and are the best positioned entities for safeguarding the privacy expectations of their homeowners as society adjusts to the uncertain and accelerating world of drone technology.

TABLE OF CONTENTS

Introduction                                                         624
I. FAA Rules: Safety, Not Privacy                                    629
     A. Unleashing Technology                                        630
     B. FAA's Focus on Safety                                        634
     C. Enforcement: More Safety Than Privacy                        635
II. Surveillance and Privacy Expectations Under Current Law          637
III. State and Local Laws to Protect Privacy Will Not be Preempted
     by the FAA Rules                                                645
       A. Matters Preempted by FAA                                   648
       B. Matters Not Preempted by FAA                               649
IV. State and Local Governmental Regulatory Activities               650
V. Community Associations in the Governmental Role                   655
     A. Community Associations Resemble Local Government             657
     B. Rulemaking and Financing of Community Associations           658
        1. Reasonable Rules                                          658
        2. Financing the Association                                 659
     C. Protecting Privacy in Community Associations                 660
Conclusion                                                           663

INTRODUCTION

Perhaps more than any other new technology of previous eras, today's rapid evolution of drone technology diminishes the degree of privacy to which Americans are accustomed. Drones, or unmanned aircraft systems ("UAS"), are capable of flying hundreds of feet in the air while amassing images and data of people and places on the ground. The drone's aerial perspective, along with its ability to hover, gives unprecedented access to places that were once shielded from public view.

In view of drones' extraordinary surveillance, data-gathering, and data-dissemination capabilities, privacy advocates are concerned that the new FAA rules for commercial drone operators expose individuals to pervasive surveillance. …

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