PHOENIX — For $200 you can go to an electronics store, buy a remote-control helicopter, strap a camera to it and fly it over you’re neighbor’s property and peek through the windows.
Now a state lawmaker wants to put a stop to all that.
Legislation by Rep. Bob Thorpe, R-Flagstaff, would make it illegal to use any kind of unmanned drone to observe individuals or private property without permission. He said this is designed to plug gaps in laws designed to protect privacy.
“The average citizen, now they have a technology that they can really turn into the ultimate peeping Tom,” he said.
Pima County Attorney Barbara LaWall said she understands what Thorpe is trying to do. But LaWall said she’s not sure his measure would hold up.
“The only way you commit criminal trespass on anybody’s property is you have to knowingly enter on property that somebody has control over, and you have to know you don’t get to do that,” LaWall said. “Well, the airspace above it is not on the property.”
And there is no right to keep aircraft from flying in the airspace above one’s property.
Beyond that, LaWall said people cannot be charged with trespass without “reasonable notice” that entry onto the property is forbidden.
“It’s just bizarre legislation,” she said. “This just raises a lot of questions.”
Potentially more problematic for her is another section of the legislation that would bar police from using any sort of pilot-free aircraft to observe individuals or private property without a search warrant. She said that could interfere with legitimate police operations.
Thorpe said that’s not his intent, and said he would alter the measure if necessary.
At the heart of HB 2613 is what Thorpe believes is a right to privacy — and how technology can take that away.
He said the law already protects someone from having a stranger climb over the fence and peek through the back window, or even take pictures. Thorpe said it’s no different if the person is using a drone as a surrogate, which he compared to an “avatar.”
He acknowledged that airspace does not belong to the property owner. And he said the issue gets trickier the higher over the property the camera is hovering.
For example, he said spy satellites, with high-resolution cameras capable of reading license plates, can be positioned over a specific property. Leaving aside the legality of that, Thorpe said it would be impractical to try to prevent it.
Similarly, Thorpe said if a drone were hovering 1,000 feet over someone’s property it would likely be impossible to know who was operating it, much less get police to investigate.
But he’s not sure at what height that right of privacy — and the ability to seek police intervention — should kick in.
Thorpe said there’s nothing illegal if someone stands at the property line and watches what’s going on in someone’s house or yard, and they probably could even use binoculars.
Then there’s that issue of what police would be able to do if his legislation becomes law.
Thorpe acknowledged that law enforcement uses helicopters all the time to check what’s happening on the ground. And none of that requires a warrant. Similarly, he said police can probably follow someone without a warrant.
But he said drones should be subject to special rules.
LaWall said that ignores the obvious: Helicopters can snoop as effectively as drones, if not more so.
“If you’ve gone up in those helicopters, you can see everything,” she said, especially with the cameras and special binoculars available. “You can read license plates.”
She said Thorpe’s bill creates a distinction that makes no sense.
Thorpe said what’s different with drones is the cost.
He said helicopters are expensive to operate, so there’s little danger a police agency would spend the resources to tail someone for hours, if not days. Ditto, he said, with police assigning detectives to follow someone.
Not so with drones, he said.
“As the costs drive down, as the devices get smaller, I think there’s the opportunity to maybe throw more of them out there,” Thorpe said.
Thorpe said he may need to rewrite the measure to avoid the need for a warrant for general patrolling by a drone, similar to what the Border Patrol does in searching for smugglers. But he said anything that targets an individual or property should still first require a warrant.