By: Max Mauldin
The expectation to the right of privacy has always been a difficult question. However, businesses and people generally should be aware of the limitations of the right to privacy. This forum post addresses how the expectation of privacy is affected by low flying aircraft in light of Florida v. Riley.
The following is an excerpt from the “FAA_Guide_to_Low-Flying” on the FAA’s website which includes Federal Aviation Regulation 91.119. Helicopters are exempt from sections (b) and (c), but not section (a). Section (a) is still fairly restrictive in that crash-landing a helicopter over a house would almost certainly result in what some may consider “undue hazard to persons or property.” Indeed, pilots of all types are taught to interpret these terms narrowly, i.e. do not get dangerously (for the pilot or for the people) close to people or their property. The flush language also references law enforcement and medical services and added benefit:
FAR 91.119 Minimum safe altitudes; general
Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:
(a) Anywhere – An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.
(b) Over congested areas – Over any congested area of a city, town, or settlement, or over any open-air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
(c) Over other than congested areas – An altitude of 500 feet above the surface except over open water or sparsely populated areas. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.
(d) Helicopters – Helicopters may be operated at less than the minimums prescribed In paragraph (b) or (c) of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with routes or altitudes specifically prescribed for helicopters by the Administrator.
Helicopter operations may be conducted below the minimum altitudes set for fixed-wing aircraft. The reason: they have unique operating characteristics, the most important of which is their ability to execute pinpoint emergency landings during power-out emergencies. Furthermore, the helicopter’s increased use by law enforcement and emergency medical service agencies requires added flexibility.
Herein lies my principal argument against the Supreme Court. The public correctly and justifiably has a right to be protected from flying craft through the regulations enforced by the FAA for reasons of safety, such as if a craft experienced engine failure, privacy, and security in one’s possessions. The decision of Florida v. Riley tramples on that right. In my view, the hovering of a helicopter, be it drone or otherwise, under the 500 foot above-ground level mark is a trespass and a violation of a reasonable expectation of privacy.
Seemingly, law enforcement should not be able to either trespass and invade a person’s reasonable expectation of privacy when similarly situated civilian aircraft would be prohibited. Florida v. Riley states that 400 feet flyovers by law enforcement helicopters is satisfactory. This, despite the fact that law enforcement and medical services may need those lower altitudes primarily for activities that do not trespass or violate a reasonable expectation to privacy. In contrast, utilizing that altitude to acquire a great view of potential wrongdoings should simply not be allowed. In essence, law enforcement should not get a pass for an act that would be prohibited by a civilian craft without valid reasoning for why a law enforcement craft is there. If that law enforcement craft had been at that altitude for some other purpose than spying on citizens, the holding would be spot on. However, in light of reasonable safety concerns of private citizens and businesses, the Court’s should have come to a different conclusion.