Florida’s New Drone Law, Restricting “Surveillance,” Is a Gift to Personal Injury Lawyers
FlaglerLive | September 1, 2015
By Nancy Smith
Look for lawmakers to revisit Florida’s new drone law. Maybe later rather than sooner. But certainly tweaks are on the horizon for a law governing a budding industry that few understand and even fewer trust. The bill the Legislature passed last session and Gov. Rick Scott signed May 14 — the Freedom from Unwarranted Surveillance Act — lays out a gold-plated welcome mat for personal injury law firms looking to establish a new cottage industry.
The law says using unmanned aircraft to take photos or record videos of people on private property is now illegal in Florida. Not that scofflaws will be sent to jail. But the bill authorizes injured parties to sue if they can prove they’ve been financially damaged.
And here’s what has little leprechauns dancing in lawyers’ heads: Tough-to-prove actual damages might be small, but if the court finds for the plaintiff, the lawyer can collect his fees from the defendant.
Matt Grosack, a Miami-based associate with DLA Piper Global Law Firm, explains it:
“One of the criticisms of the law is, there are a lot of hungry lawyers out there who will be pushing litigation,” he told Sunshine State News. “In a drone case, I can’t imagine actual damages are going to be that high. There has to be a permanent record of the surveillance and you have to prove an intent to commit surveillance — that is, an intent to get information on someone. But ultimately, if the court says, as a plaintiff you’re due $500 in damages, the defendant also has to pay the $25,000 attorneys’ fees to litigate, or whatever the cost is.”
Grosack calls drones “probably the most disruptive piece of technology to the expectation of privacy we’ve seen in many, many years. … Most lobbyists and people involved with the new law consider it a work in progress. They know it’s just a start. … The technology is advancing very quickly and there’s not even any case law yet, so we don’t know how the courts will react.”
Law enforcement agencies are still figuring out how the law will be enforced. Some say the way it’s worded makes it a civil matter. Which means an officer may respond to a call and write a report, but won’t necessarily — in fact, probably won’t — make an arrest.
What makes drones so disruptive to our expectation of privacy, as Grosack puts it, isn’t just that the small aircraft are relatively inexpensive, have become mainstream, requre a low-level of technical knowledge and are difficult to hear or see — it’s also that drone incubators, manufacturers and suppliers are springing up all over, including in Florida. For a good feel of how many of these new companies we’re talking about, read the Miami Herald’s May 3 Business story, “Romancing the drone: Demand takes off in South Florida.”
Drones are an explosive “happening” thing. Like medical marijuana, there’s an entrepreneurial rush to get in on the act. But states like Florida have been groping in the dark since 2013, trying to move quickly to get legislation on the books.
Already Amazon and the U.S. Postal Service are looking at the possibility of “delivery drones.” And both State Farm and the American Red Cross have Federal Aviation Administration permission to survey property damage.
“You are dealing with what has been valued as an $82 billion industry over the next 10 years that could create 100,000 new jobs in America alone,” says Grosack. ‘When you look at that, you see a lot of opportunity … What you are seeing is a lot of people out there taking the risk and just going for it. …
“The days of skies without drones are numbered,” he said.
High cotton for personal injury attorneys.
There is no uniform global or national approach to how drones should be used legally, whether in the hands of hobbyists or businesses. The FAA can regulate and educate on a national level. Most everything else lies within the province of states, counties and cities. Laws and precedent developed over hundreds of years address trespass, privacy, air traffic and interference with goverment agencies such as police and fire departments.
As exciting as the business future for drones appears, what fertile ground for a bee-swarm of litigation.
“I don’t know if this is something I want to continue with,” said Donald Ramuk, a young entrepreneur building software in a Central Florida drone incubator. “I don’t know if I can afford the insurance against lawsuits, I don’t know if I want the hassle, I don’t even know what’s involved at this point. Certainly, I have a fear of lawyers drumming up business at my expense.”
It’s early, but no bills tweaking Florida’s 2015 drone law have been filed for the 2016 Legislature.
Nancy Smith is the editor of Sunshine State News. She started her career at the Daily Mirror and The Observer in London before spending 28 years at The Stuart News/Port St. Lucie News as managing editor and associate editor. She was president of the Florida Society of Newspaper Editors in the mid-1990s. Reach her by email here, or follow her on twitter at @NancyLBSmith.