Open Letter: Why Gov. Brown Should Veto California’s Unreasonable & Unsafe Anti-Drone Law

We need a sensible law to protect privacy. This isn’t it.

California might enact one of the most restrictive laws for flying drones in the United States this week. The law, SB-142, has good intentions to protect privacy. Unfortunately, it’s badly written, comes from fear rather than understanding of drone photography and potentially makes flying drones more dangerous in the state of California.

I hope this open letter to my governor, Jerry Brown, will help encourage him to veto the law. I also hope it helps educate anyone about why this is a bad law as well as why drones are not necessarily remote-controlled privacy invasion platforms.

Me & My Drone

For this past Christmas, my family gave me a drone. This has become a more common gift. Indeed, drones themselves have become more common in ownership. Over the past year, I’ve enjoyed flying my drone to do photography over public areas in the city where I live, Newport Beach. I’ve also taken it on trips to use for tourist photography such as in Iceland.

After my trip in Iceland, I wrote a post about what it’s like using a drone for tourism photography, as well as some of the growing issues that are emerging about knowing where you can fly. I’d encourage anyone to read that for further background on this issue: Playing Drone Tourist —
a Glimpse of the Future?

There’s no question that drones raise many new issues, from safety (as with one crashing at the US Open this week) to privacy. But there’s also massive misunderstanding of what a drone can actually see.

My Drone Is Not A Spy Cam

California’s proposed law would force drone operators to fly no lower than 350 feet over private property. The reason seems to be at that height, the assumption is the drones can no longer see well enough to somehow invade privacy.

Drones don’t have powerful cameras take can make out great details at that height. In fact, even at lower heights, what they can see in detail is limited. My suspicion is that many lawmakers voting for this bill haven’t actually used a drone nor been giving some comparative examples. So, allow me to demonstrate for them and anyone.

What A Drone Can & Can’t See

Below, I took a series of photographs at the base of the Newport Beach Pier, to illustrate what a drone can see at different heights. Here’s 300 feet, which is 50 feet lower than the proposed law would require:

Already, it should be clear that even a lower altitude than the new law would require means a drone isn’t able to spot individual faces.

Here’s 250 feet:

200 feet:

150 feet:

100 feet:

50 feet:

Even at 50 feet, the detail isn’t perfect. Here’s a close-up of that 50 foot view, from the top left-corner, where you can see me flying the drone (next to me is a curious on-looker fascinated to see what it can view):

If you know what I look like, you could probably identify me from that. However, it’s far from a crystal-clear shot that some who fear drones seem to believe they’re capable of.

California’s Law Promotes Unsafe Flying

Are you wondering why I didn’t have an example of what can be seen at the height California’s new law would restrict drones to, 350 feet? The reason is that my drone wouldn’t safely go that high.

When I got to around 310 feet, my drone’s controller starting flashing warnings that my connection to it was becoming weak. One of the most important rules of flying a drone is that you always maintain a safe connection and maintain visual contact with it.

California’s law proposes that drones should stay at what’s an unsafe and hard-to-see altitude for many models, to ensure that drone operators don’t accidentally “trespass” into “private property airspace.” That’s not a smart law, especially when it’s already overlooking the fact that lower altitudes can provide both privacy protection AND operational safety.

When Private & Public Property Mix

One of the groups opposed to the new law is the National Press Photographers Association, because they worry that a drone that strays over “private airspace” when recording a news event could get the operator sued. From a Los Angeles Times article about this:

The organization also said it’s difficult for a property owner, standing on the ground, to determine a drone’s exact altitude or location, and that may lead to erroneous legal claims.

Indeed, it is. This new law could be a nightmare for local police. Someone seeing a drone fly over their property at any altitude for even a few seconds of time might call the police and demand that they seek out the alleged violator. That’s not a good use of police time in situations where there’s no actual attempt to invade privacy, but you can bet that’ll happen. And, it’ll happen even if the drone isn’t over that property.

Also consider this:

That’s the picture I took from 300 feet at the base of the Newport Beach Pier, as shown earlier. The red area in the lower right corner covers private businesses and homes. If my drone were to drift or pass over this area even briefly, I could get arrested for trespass. Moreover, that would happen even though at that height, keeping my drone entirely out of “private airspace” wouldn’t have afforded those properties any greater privacy.

This Photo Would Be Illegal

Now consider this picture:

I think that’s a pretty nice picture. It’s one of my favorite things to do with my drone, take pictures from along the beach. California’s new law would make that illegal.

There’s no privacy violation going on here. It’s a picture of the sun setting as seen from a public beach, just like literally millions of people take each month using their smartphones. But this picture would be verboten as a trespass violation.

Why? Because there’s a good chance that when I took it, my drone was above some of those private businesses and houses I mentioned above. I myself was standing on public property. But the drone was backed up further, in order to get a better view. California’s law would declare this trespass on private property even though the camera isn’t taking pictures of that property.

This is why California’s proposed law isn’t just unsafe but also unreasonable. It doesn’t take intent into account. Drift into what’s being redefined now as private airspace, and that’s trespass with possible criminal penalties, even though that airspace was arguably public before and even though you might have no intent to violate someone’s privacy.

How California Wants Declare “Private Airspace” Despite The FAA

This law is also potentially bad because it seems the state of California wants to extend control over airspace regulations that came under the jurisdiction of the US Federal Aviation Administration. That’s right. California could find itself in the middle of a states’ rights battle on airspace.

Right now, the FAA allows drones to be flown from 0 feet to 400 feet over most anything except around airports. You can learn more about this at the Know Before You Fly site.

What about those restrictions like you can’t fly over national parks or you can’t fly over Disneyland? That’s all a mess, which California’s new law will contribute to. The National Park Service as a temporary restriction on flying while on NPS land. If you were not on NPS land but flew over a park, that might be technically legal. Disneyland has an FAA fight restriction involving it.

That Know Before You Fly site says you should follow local laws when flying over private property. But the FAA itself doesn’t seem to mandate this, so that might be more common sense advice to stay out of trouble rather than an acknowledgment that local laws can trump public airspace.

Public Airspace For Drones Is 83 to 400 Feet

As for what’s public airspace legal for drone flights, right now according to federal law, it appears to be anything from 83 feet to 400 feet.

This NPR article explains how a case that went to the US Supreme Court declared that landowners own their “sky” up to 83 feet. Above that, it’s public. California’s law would seek to overturn a that federal ruling and take the lower limit up to 350 feet.

As for the upper limit for drones, it’s 400 feet because that’s what the FAA has said they need to stay under, while it reviews its own rules.

Recreational Vs Commercial Use

Complicating the mess behind California’s law, the interests of those who want to do commercial drone flights like Amazon for deliveries are being put ahead of the recreational users.

I spoke with the spokesperson of one California assemblyperson who backed this bill. That PR person explained that 350 feet limit was selected so that there would be a clear band for commercial operators to operate for deliveries or other purposes. IE, there would be a “safe to fly” band between 350 to 400 feet. The person also stressed that manufacturers wouldn’t be liable for trespass under the new law, only drone operators.

None of that helps the mass majority of drone operators in California now, who are recreational users and who aren’t wanting to fly in a dangerous 50 feet wide brand to avoid being harassed as trespassers.

And They’re Coming For Your Kites

Now for a real nightmare scenario. If you take your kids out to fly a kite, you’d better make sure they’re not flying them over private property. That’s because under this new law, that could be trespass.

The new law defines “unmanned aircraft” as an aircraft “that is operated without the possibility of direct human intervention from within or on the aircraft.”

In other words, a kite is “unmanned” because there’s no direct human intervention that can happen with it.

What about a kite string! Perhaps that could be argued as allowing direct human intervention. Or, perhaps not. A string simply transmits a human control exactly as a radio signal transmits a human control. Possibly, someone could sue someone else for trespass if a kite flies over their property.

That’s part of the ridiculousness of the proposed law. It’s meant to protect privacy but does so using a trespass ordinance, which means any remotely-controlled flying object — camera or not — potentially falls under it.

We Need A Reasonable Law

I am not some fanatic who believes that drones should be able to fly over anything and anywhere, striking up a demand that all things should be declared public. Like others, I’ve had drones hover over my property while I was sitting outside relaxing. It’s disturbing and can be creepy, even when I fully understand the limitations of drone cameras.

But I do think our laws on drone use need to be based in common sense. Altitude restrictions should consider the quality of camera image and safey considerations. Privacy laws should consider actual intent, so that someone briefly passing over up high isn’t seen the same as someone who’s hovering 25 feet in one spot for a long-time over a property. Restrictions over public property should have reasonable public safety reasons behind them.

I’m all for a sensible law. I’d very much like to see the piecemeal regulations that are so hard to track by the responsible drone owner become easier to follow. But SB-142 isn’t a sensible law. Governor Brown, please veto it.

If you agree this law should be reconsidered, you can email Governor Brown to veto it using this form. You can also tweet to him at @JerryBrownGov. I’d also encourage anyone to consider sharing this story. Even if you agree with the law, I think it helps if people have a better understanding of what drones can really see.

Postscript: Height Doesn’t Equal Privacy

A number of people have commented here and elsewhere that my example above on what you can see is somehow invalid because it’s only for my drone and doesn’t take into account drones that could be equipped with better cameras.

My drone is a popular model made by a popular maker, so what I’ve illustrated is indeed typical of what many drones can see as opposed to what some people assume.

Still, such comments support my point on why California’s proposed law is bad and does little to protect things. It doesn’t cover photography at all. Not one word in it covers photos.

Rather, it makes the assumption that height equals privacy from photography, which isn’t necessarily true. You could have special drones that, at the proposed height, which could see in great detail. It also completely neglects the fact that someone could fly a drone at low altitude over their own property and still be completely legal if they want to point their camera into a neighbor’s yard.

This is a bad law that intended to protect privacy but which actually does nothing to define what’s an invasion of privacy. It’ll make lawmakers feel good and be able to act like they’ve improved things. They won’t have, which should have been the real goal.

Postscript: Maybe We Should License Drones & Pilots

I said earlier that that I’m for sensible restrictions on drone flights. Despite this, I’ve seen a few knee-jerk comments that I’m somehow advocating that drones should be able to fly anywhere. I’m not. I didn’t say that. I said the opposite.

But let me go further. There’s a very good argument that we might want to enact laws that require drones to be licensed, that drone pilots get certified and perhaps even that drones should be trackable.

The beauty of modern drones like from DJI is that they’re so easy to fly. Anyone can get in the sky quickly. The danger is that they’re not easy to fly. Because you get airborne fast, you can assume you know exactly what you’re doing but then get into danger trying to fly to close to a fixed object, people or other unexpected hazards.

I’m all for the idea that drone pilots, as well as anyone flying RC vehicles like model airplanes, have to be licensed if the vehicles are say over a set weight or have a set range (let’s avoid licensing kids with drone Millennium Falcons that can’t fly more than five feet off the ground, shall we?).

Perhaps to be licensed, you have to pass a test that demonstrates you’re aware of where it’s generally safe and legal to fly, as well as how to generally fly safe and legally. Perhaps there’s also a practical test to show you’re able to control a standard drone.

Maybe drones themselves also have to be licensed, so that if there is an accident, it’s easier to determine ownership. Insurance could perhaps be required. Some have raised the issue that they need to be trackable. Maybe. We don’t require that, to my understanding, of private aircraft. But if there’s an explosion of drones, perhaps this will help.

Again, I’m totally aware that drones present real challenges, from a safety, privacy and annoyance perspective. From my earlier post about operating one:

As drones drop in price, become more portable and popular, that “selfie sticks of the skies” situation I described earlier seems likely to come. I don’t think anyone’s going to want to be in popular locations with multiple drones buzzing about. But I don’t think the reaction to this should be restrictions that are too broad. Hopefully, appropriate rules will be put into place and made easy for drone pilots to find.

We need appropriate, reasonable and helpful rules. I’m all for that. But California’s proposed law isn’t any of this. It’s a fiction that presents itself as protecting privacy, even though it won’t. It will make understanding where and how to fly a drone more difficult and dangerous. It should be scrapped, and the politicians should come back having done their homework with a proper law that will actually work.