You May Not Be Spying With a Drone -- But You Might Still be Breaking the Law

There has been a lot of recent news coverage over a Seattle woman's report that a drone flying outside of her window was spying on her. At Forbes, Gregory McNeal discusses this story and other stories about drones. McNeal argues that a lot of news coverage of drones is overly dramatic and even misleadingly alarmist. From McNeal's article:

Last month a Seattle woman said that a drone made her nervous because it was flying outside of her window. Early media reports called the device a flying “Peeping Tom.” Soon afterwards, national reports exploded with more than one hundred stories, focused mostly on the news media’s construction of a privacy violation. Now, the photograph of the flight has been provided to Forbes, and it shows that the company flying the drone was merely making a panoramic photograph of the city skyline. The arc of this story — a buzzworthy first report, that later ends up being false— is emblematic of many drone related stories which threaten to jeopardize the nascent industry. 

The Seattle non-incident gained national media attention after the woman called her building’s concierge to complain that the drone may have been used to look into her apartment. What received less prominent national media attention was the statement of Joe Vaughn, founder of startup company Skyris Imaging. Vaughn said that he and the pilot of the drone were shooting a panoramic view of the city for a client who was planning to build a 20-story office tower near the woman’s apartment building. 

. . . 

Vaughn demonstrated he takes concerns about safety and privacy seriously. He contacted the police to report what the company was doing, and said he had talked by phone with the woman who complained. ”I called her and let her know I’m sorry she was startled but we were doing an honest job, we were not peeping toms. There were no images taken at all of this
woman.”

. . .

The Seattle story, like many other drone related stories reveals a pattern in coverage about these new devices. Journalists cover a story, featuring sensational allegations in the lede and introductory paragraphs, only to have the “but it wasn’t true” paragraph buried later in the story.

I agree that some of the coverage about the danger of drones and how they may violate privacy has been over-hyped. That tends to be par for the course with Internet coverage of just about everything these days.

But I also think that other coverage of drone use has been misleadingly optimistic towards harmful use of drones. Take, for example, an instance where a drone shot footage while it flew through a fireworks show. Many commentators marveled at how beautiful this was. But only a few people (including, interestingly, McNeal) pointed out that this drone use was highly dangerous and almost certainly illegal.

When it comes to discussions of drones and opinions on whether they are dangerous or harmless, it is easy to find coverage of identical events that is skewed in the direction of either opinion.

But there is a more specific point that I want to make in this post about the Seattle incident in particular. Joe Vaughn, the owner of the drone, claimed that he was not violating anybody's privacy because he was using the drone to survey a potential site for an office building. Visiting Vaughn's website reveals that Vaughn offers his services in a number of fields, including surveying land for real estate and agriculture, and for shooting marketing imagery.

While Vaughn's drone use may not be for the nefarious purpose of spying on somebody, in stating that he was using his drone for his real estate surveying business, Vaughn may have inadvertently admitted that he was using his drone illegally. The Federal Aviation Administration (FAA) bans the use of drones for commercial purposes unless a business has applied for a permit to use the drone. And since the FAA's first authorization of such a permit only happened back in June, I am fairly certain that Vaughn is not flying his drone with federal authorization.

While Vaughn may not have been spying with his drone, he may have just admitted that he was using his drone illegally. Businesses that use drones for real estate surveying tend to veer dangerously close to the line that separates legal, hobbyist use of drones from potentially prohibited commercial use. And while there is certainly room for debate over whether the FAA's restrictions have the force of law, I think it is ironic that Vaughn's justification for his drone use may end up being an admission of illegal activity.

Updated Guide for Submitting Law Review Articles

Via Paul Caron's TaxProf Blog, I learned that Allen Rostron and Nancy Levit have updated their "Information for Submitting Articles to Law Reviews & Journals" document on SSRN. From the description:

This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 203 law reviews.

The document also contains ranking information for law journals. Up till now, I knew that this document existed but I didn't pay too much attention to it since many journals have policies restricting submissions by law students. But I look forward to making my way through the article submission process now that I've graduated.

Although I won't be giving the process any thought at all until the bar exam is over.

Greenberg on "Crypto-Anarchists" Cody Wilson and Amir Taaki

At Wired, Andy Greenberg has an excellent article on "crypto-anarchists" Cody Wilson and Amir Taaki. Wilson and Taaki are involved in projects like Dark Wallet that would make digital currencies like Bitcoins hard, or impossible, to trace. Wilson is the person behind Defense Distributed, the company that made the first gun entirely out of 3D printed parts. The article describes how Taaki and Wilson got involved with their endeavors and details their projects and goals.

From the article:

Dark Wallet also offers what it calls “stealth addresses” that allow a user to receive bitcoins at an encrypted address, where only he or she can retrieve them using a private key. When a coin passes through either a CoinJoin transaction or a stealth address, it becomes vastly more difficult to track, making taxation, regulation, and prosecution virtually impossible. “We want a bitcoin that laughs at the regulatory pageantry,” Wilson says. “We’re going to permanently problematize bitcoin’s reputation.”

. . . 

“Everywhere there’s a computer, there would be the promise of a gun,” [Wilson] told me when we first spoke in 2012. “I see a world where contraband will pass underground through the data cables to be printed in our homes as the drones move overhead. I see a kind of poetry there. I dream of this very weird future and I’d like to be a part of it.”

Wilson and Taaki pursue a vision of a world where people have "tools that make illegal behavior so commonplace and technically trivial that the law ceases to be relevant." People who agree with this vision embrace technologies like Bitcoins and 3D printers because these technologies upset existing legal regimes and therefore resist traditional regulation.

The interest in circumventing laws with new technology is not restricted to idealists like Wilson and Taaki. The article points out that groups promoting terrorism have specifically identified Dark Wallet as a useful tool for funneling illegal funds. Digital currencies like Bitcoins are increasingly used for illegal activities such as the sale of drugs and child pornography.

Wilson and Taaki's ideal of undermining traditional laws illustrates why governments need to develop regulations for emerging technologies, or adapt existing regulatory schemes to apply to new technology. Law has often lagged behind technological advances, but the need to bring law up to speed gains new urgency when those behind the development of technology are actively seeking to bypass regulations.

Additionally, this article illustrates the particular importance of legal scholarship that tries to answer questions about regulating new technology. Not only will this scholarship tend to be novel, but it will be useful, since legal scholarship on bitcoins, 3D printing, and other emerging technologies will be the first arena where legal questions about these new technologies are presented and answered.

Brady Campaign Sues Over Kansas Gun Law

The Associated Press reports:

The Brady Campaign filed a federal lawsuit last week against a 2013 state law declaring that the federal government has no authority to regulate guns, ammunition and accessories manufactured, sold and kept only in Kansas. Brady officials argue that it is a blatantly unconstitutional attempt by a state to nullify federal laws. 

. . . 

The law makes it a felony for any U.S. government employee to attempt to enforce federal regulations for Kansas-only firearms, ammunition or accessories and allows lawsuits by the state attorney general or county prosecutors to block federal enforcement attempts. The statute also says no state or local official shall attempt to enforce any federal gun regulation for Kansas-only items.

The full complaint is available here. The Brady Campaign argues that the federal government has the authority to regulate firearms that are made and sold within Kansas. From the complaint:

58. In the exercise of its Commerce Clause authority, Congress has enacted “comprehensive legislation to regulate the interstate market in a fungible commodity.” See Raich, 545 U.S. at 22. This firearms regulation properly reaches the intrastate manufacture, ownership, and possession of firearms and ammunition. Kansas has no power to “carve out” intrastate “Kansas” firearms from the comprehensive federal regulation.

59. The United States Court of Appeals for the Tenth Circuit explicitly upheld federal regulation of entirely intrastate possession of firearms. United States v. Haney, 264 F.3d 1161 (10th Cir. 2001). The court held that the firearm regulation was an “essential part of the federal scheme to regulate interstate commerce in dangerous weapons.” Id. at 1168. The court found “no question that the market in firearms generally is heavily interstate — indeed, international — in character.” Id. at 1169 (citing 18 U.S.C. § 922(q)(1)(D)). The court also found that “[b]ecause of the ease of moving weapons across state and national lines, Congress has rationally concluded that it cannot rely on the states to control the market in these devices by themselves.” Id.  Another federal appellate court squarely rejected a Montana law that attempted to do exactly what Kansas attempts here—to carve out an intrastate firearms market that Congress cannot regulate. See Montana Shooting Sports Ass’n. v. Holder, 727 F.3d 975, 982-983 (9th Cir. 2013) . . . .

The Brady Campaign seems to be on pretty solid legal ground in challenging the Kansas law. If the federal government has the authority to pass a law, and if a state law conflicts with the federal law, then under the Constitution's Supremacy Clause the federal law will trump the state's.

From a legal perspective, this case is fairly simple, since the Kansas law is pretty clearly unconstitutional. But that hasn't stopped supporters of the law from arguing that the Brady Campaign is playing politics with this lawsuit. From the AP:

GOP Gov. Sam Brownback's spokeswoman Eileen Hawley said, “It’s unfortunate that the Brady center has chosen to file such a politicized lawsuit.”

However...

So far, the law has been mostly a symbolic protest against the federal government. There have been no known attempts to arrest federal employees or lawsuits over federal enforcement actions. . . . .

The law also is a vehicle for Republican politicians in Kansas to showcase the depth of their opposition to Democratic President Barack Obama’s administration ahead of this year’s elections. Brownback is a strong supporter of the law, and his re-election campaign sent out a fundraising email the day after the lawsuit was filed, seeking financial help for his “stand against the attacks from the Obama Administration and their gun-grabbing friends.”

Meanwhile, the Brady Campaign argues that Kansas's opposition to the federal government is akin to the sentiments that motivated opponents of Brown v. Board.

While the legal merits of the case are relatively simple, it will be interesting to watch the law's supporters and the Brady Campaign continue to duke it out on the public relations level.

Kevin Underhill's Guest Posts at the Volokh Conspiracy

In case you weren't reading the Volokh Conspiracy last week, Kevin Underhill was guest-posting on the subject of strange and humorous laws. Underhill normally discusses strange laws and interesting legal stories on his blog, Lowering the Bar.

I recommend that you check out Underhill's blog. And for a sample of the subjects Underhill typically discusses, I strongly recommend his posts from last week. I have links to each of them below -- each one accompanied by a quote from the post.

"Pointless Declarations"

[California's] official state animal, the California grizzly bear, has been extinct since 1922. In fact, it had been extinct for over 30 years when the California legislature made it “official.” I don’t know exactly what kind of message that sends, if any.

"Odd Laws Still on the Books"

In short, the [Guano Islands Act] allowed any citizen to claim an island on behalf of the United States, as long as that island was uninhabited and covered in bird poop.

"Laws Addressing Some Human Oddity"

Connecticut has decided that the rules of civilized warfare should extend at least in part to squirrels, rabbits, and other protected fur-bearing animals. And that is fine with me.

"The Government Not Minding its Own Business"

Of greater concern, and drawing more attention, is China’s law requiring permission to reincarnate. State Religious Affairs Bureau Order No. 5 requires any “reincarnating living Buddha” to fill out the appropriate forms for government approval, after which they will go looking for the corresponding “Buddha soul child” and (if approved) “issue a living Buddha permit.” Although the bureau claimed, apparently with a straight face, that this measure was intended to promote religious freedom, it is clearly aimed at controlling Tibetan Buddhism. But as is so often the case with laws that involve government meddling, it is both ridiculous and not fooling anyone.

"Mysterious Laws"

Then there are the Hittite laws on … let’s say, fraternization with the animal kingdom. If a man were caught fraternizing with a cow, sheep, or pig, the penalty was death (for the man). Horses and mules, though, no penalty at all — except that you could never become a priest. But then there was Section 199, which provided the death penalty for any ox that “spring upon a man” for the same purpose. (Does this happen?) The man would not be punished in this scenario, but a sheep would be killed as a substitute. So, bad for oxen and sheep, but pigs caught springing (does that happen?) wereexpressly exempted from any punishment. I guess this might all be explained by religious taboos, which we can’t expect to make too much sense. Still, Section 199 is perplexing.

It is Not Illegal for Mustached Men to Kiss Women in Public in Iowa

I recently came across this list of things about Iowa that "you probably don't know" on my Facebook news feed. The first item on the list caught my eye:

1. In the state of Iowa, it is illegal for a mustached man to kiss a woman in public. Shorn face PDA only please.

This "fact" reminded me of a recent post by Kevin Underhill over at the Volokh Conspiracy. He writes:

There are an untold number of “dumb law” lists on the Internet or in book form, but with rare exceptions the people who compiled those lists didn’t actually confirm they were real. Sure, it’d be kind of funny if a California town had a law against riding a bicycle in a swimming pool, but as far as I can tell, it doesn’t. Believe me, there’s no need to make this stuff up.

I began to wonder if that mustache law could be real. So I decided to put my legal research skills to the test. I started where anybody who cares about saving money and informing the public should - with Google.

I found no shortage of websites claiming that this "dumb law" exists. But common to all these websites was a dearth of citations to any Iowa statute. Websites making the mustache law claim without any citation can be found here, here, here, here, here, here, here and here. Although with names like omglaws, sodahead, and stupidlaws.com, I'm not sure why any citation is needed.

There are some citations out there. Yahoo Voices, Bored.com, the Date Report, and Crime Wire cite Dumblaws.com, for instance. But while Dumblaws.com provided several links to the text of some of the laws it listed, there was no citation for the mustache law.

Having struck out with Google, I decided I might as well take advantage of my final few weeks of Westlaw access. Searches of Iowa materials such as (kiss! /s mustache!) and even (kiss! & mustache) turned up no laws restricting the kissing activities of mustached men. A "mustache" search of the Iowa Code on the legislature's website led to a number of regulations on barbers, but no kissing prohibitions.

I'm going to go ahead and say it: there is no Iowa law that prohibits men with mustaches from kissing women in public. The law is fake and has gained a life of its own through the terrible power of the Internet.

To those who may argue that this law may be in a municipal code: the claims that Iowa law criminalized mustached men from kissing women in public are all claims about Iowa law, not some ordinance or municipal law of an Iowa city or town. The mustache law is often listed alongside examples of dumb municipal laws, implying that the mustache law is a statewide regulation.

I unfortunately cannot provide a citation for the claim I am making in this post. After all, I am arguing that a law does not exist, and I cannot cite something that does not exist. If anybody wants to dispute the claim I am making here, I welcome the commentary. But I would like a citation as well.

Academic Honesty, Self-Plagiarism, and Copying Footnotes

In doing some research for an earlier post, I came across a pair of articles that had some remarkable similarities. They were both by the same author, and they were written in the same year, but they were in different journals and involved different topics. The citation for the first article is 44 Brandeis L.J. 865, and the citation for the second is 56 J. Legal Educ. 560.

Here is a passage from the first article, published in Summer, 2006. I have noted the number of each footnote in brackets, since I will go over these later:

Later Roman law drew a distinction between injury to the person and injury to property. The former was termed injuria, and the later damnum injuria datum.[174] A wrong involving theft of property was termed furtum.[175] When violence accompanied such a wrong, it was termed rapina, or vi bona rapta.[176] The protections afforded by the action in injuria addressed directly the interests protected by today's torts focusing on personal physical injury: the right to be free of physical interference with one's own person. The wrong would be redressable whether it was intentional or merely negligent, and could include “a multifarious variety of wrongs,” such as, without limitation, striking, whipping, kidnapping, or falsely imprisoning.[177] It could also include wrongs that involve no physical contact, such as insult in the presence of others (convicium facere), defamation by spoken word, writing or deed,[178] or importunings to inchastity.[179]

And here is a passage from the second article, published in December, 2006:

Later Roman law drew a distinction between injury to the person and injury to property. The former was termed injuria, and the later damnum injuria datum.[73] A wrong involving theft of property was termed furtum.[74] When violence accompanied such a wrong, it was termed rapina or vi bona rapta.[75] The protections afforded by the action in injuria addressed directly many of the interests protected by today's tort law governing personal injury, including striking, whipping, kidnapping, or falsely imprisoning.[76] It could also include wrongs that involve no physical contact, such as insult in the presence of others (convicium facere), defamation by spoken word, writing, or deed,[77] or importunings to inchastity.[78]

It should be readily apparent that in the December article, the author has copied exact sentences from his earlier article, and has closely paraphrased those sentences which he did not copy.

Additionally, there is substantial overlap in the text of the footnotes as well. From the Summer, 2006 article:

174 Hunter, supra note 115, at 139-40. 

175 See Lawson, supra note 120, at 146. 

176 Hunter, supra note 115, at 140. 

177 Id. 

178 This involves taking the property of a solvent man as though in the course securing compensation for a debt of an insolvent man. For a modern example of deeds as defamation, see Nader v. General Motors Co., 25 N.Y.2d 560 (N.Y. 1970). In that case, the court found the automobile manufacturer liable for defamation for having the consumer advocate followed by private detectives as though he was suspected of wrongdoing, and also of contriving to have Mr. Nader be witnessed or photographed in unsavory settings. 

179 Hunter, supra note 115, at 140.

And from the December, 2006 article:

73 Hunter, Introduction to Roman Law, supra note 52, at 139-40. 

74 Id. at 146. 

75 Id. at 140. 

76 Id. 

77 This involves taking the property of a solvent man as though in the course securing compensation for a debt of an insolvent man. For a modern example of deeds as defamation, see Nader v. General Motors Co., 25 N.Y.2d 560 (N.Y. 1970). In that case, the court found the automobile manufacturer liable for defamation for having the consumer advocate followed by private detectives as though he was suspected of wrongdoing, and also of contriving to have Mr. Nader be witnessed or photographed in unsavory settings. 

78 Hunter, Introduction to Roman Law, supra note 52, at 140.

I did not look into much more of each article's substance, since these two paragraphs were the subject of the research I was doing at the time. But a bit of skimming indicates that the copying is not limited to the instances I have quoted.

The overlap between these articles raises several interesting questions about the ethics of scholarly writing and re-using old work. I will discuss those questions in the remainder of this post.