October 20, 2020 Feature

Privacy Law in the Drone Age: Lowering (Reasonable) Expectations

Timothy M. Ravich
Drones are more than a traffic problem in the sky; they present a unique threat to privacy.

Drones are more than a traffic problem in the sky; they present a unique threat to privacy.

Wooyaa/iStock via Getty Images Plus

In their influential article entitled “The Right to Privacy” (Harvard Law Review, Vol. 4, December 1890, at 193–220), Samuel D. Warren and Louis D. Brandeis warned that “numerous mechanical devices threaten[ed] to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” They specifically cautioned that a new technology at the time, “instantaneous photographs,” enabled journalists to invade “the sacred precincts of private and domestic life.” This new invention and the potential “evil of the invasion of privacy by the newspapers” drove Warren and Brandeis to argue that the law should take “the next step” in the evolution of privacy jurisprudence by recognizing a right “to be let alone.” Their efforts to adapt the law for changing societal demands was so successful that Roscoe Pound later described the work of Warren and Brandeis as having done “nothing less than add a chapter to our law.” Today, 130 years later, the time to define anew the exact nature and extent of the law of privacy and its potential derivations may be warranted given the latest innovation in imaging technology: drones.

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