Is your ranch protected from Peeping Toms in the sky?

Activists are taking to the sky to grab aerial footage of agricultural facilities. What are your rights for privacy and protecting your property? The answers are unclear.

Amanda Radke

October 30, 2018

7 Min Read
Is your ranch protected from Peeping Toms in the sky?
Amanda Radke

Activist groups are working tirelessly to put you out of business. This is not hot news. However, while their goal of abolishing animal agriculture may not be changing, their tactics certainly are.

Thanks to drones peeping in the sky, we not only have to worry about activists gaining employment under false pretenses to shoot secret footage. Now we have to worry about what's overhead and how aerial footage of our homes and ranches might look in a dramatized documentary.

Last week, I wrote about a vegan college student who called me to talk about my views on ag gag laws. After the phone call, I had a feeling of vulnerability, not knowing how my comments might be potentially used or twisted to meet this kid's agenda.

READ: Advocacy can be a gamble

And I know I'm starting to sound paranoid, but earlier this fall, we noticed a drone flying near our house. We called around, and only one of our neighbors owns a drone. They said they weren't flying around that day, which left us wondering, who was flying around our place?

I'm hoping it was just an innocent passerby, but part of me worries that blogging on a national platform has introduced by name to activists who would love nothing more than to see me fail. But again, I'm trying not to be paranoid. We certainly don't have anything to hide in our operation, but the idea of someone watching and taking photographs and videos above us is a little disconcerting.

This is all particularly troubling given there have been two documentaries featuring drone footage released by activists in recent weeks. Given the stricter laws surrounding secret footage filmed by undercover activists at farms, this appears to be teh latest shady tactic by these groups.

This got me thinking about the laws surrounding drones and secret footage. How much protection do we really have from these Peeping Toms?

On ag gag laws, Heidi Carroll, South Dakota State University (SDSU) Extension livestock stewardship field specialist, offers an update.

She writes, "Ag gag laws refer to state statutes that make it illegal for someone to come onto the property -- often as employees who are undercover activists -- and illegal to distribute the undercover videos they take of livestock treatment at farms and ranches. Though proponents of these laws typically refer to them as property protection acts.

"In 2018, there are still less than 10 states that have current laws in place protecting farms and ranches from potential undercover videographer attempts and falsifying information on employment applications. The legal debate continues to be whether or not these types of statutes are constitutional with regards to the First Amendment. Two recent court opinions have provided guidance on the free speech debate.

"The Utah federal district court opinion in 2017 ruled that Utah ag gag statutes were unconstitutional by violation of free speech. The judge showed the value to the public that undercover videos exposing farm animal mistreatment could provide. This ruling will likely not be appealed.

READ: Drones, drones on the range

"The 9th Circuit Court of Appeals opinion in 2018 rules that part of the Idaho ag gag statute was constitutional, the lying on employment application to gain farm access; while trying to prevent undercover videotaping was unconstitutional and would violate free speech. This made at least the employment application misrepresentation and access to business records could be a criminal suit instead of a civil suit."

When looking at laws on drones, the rules are still very unclear. There are Peeping Tom laws that might cover the use of drones in certain scenarios, but it varies by state and the circumstance.

So what if a drone shoots footage of your feedlot or ranch? Here's what you should know.

First, there is a distinction between your right to privacy and the right to publicity, explains Attorney Deborah C. England, in a recent article titled, "Unmanned aircraft and your privacy."

England writes, "The common law right to privacy prohibits others from using your likeness, photograph, name, or image for their own private benefit. A separate, but related, right developed from this aspect of privacy law is called the 'right to publicity.'

"The right of publicity gives you the legal power to control the commercial use of your image. In other words, you don't have to be famous to have the right to control the commercial use of your image; everyone has that right in states that recognize it.

"Even where the right of publicity is recognized, images of individuals may be used without violating the right if they are not used commercially but instead for certain other purposes, including news reporting, informational purposes and public interest.

READ: Where artificial intelligence could take agriculture

"For example, if there was a news crew flying the drone to film your neighborhood for footage about sky-rocketing rents and you happen to be in a shot of your building, that use is likely not a violation of your right of publicity. Similarly, if the crew is shooting a documentary about your city and uses the footage to show the various neighborhoods, that would also likely be permissible. The key here is that your image is not being used commercially.

"However, even if the film crew uses the drone photo for a non-commercial, permissible purpose, your right to privacy may limit how they use the drone photo. The right to privacy includes the right to control your image from appropriation by another, not to have one's private space intruded upon, to control the public disclosure of private facts and not be depicted in a false light."

So, are you protected or not from drones flying above your private property and taking footage without your consent? The short answer is, it depends. Check your state's laws and be aware of how it protects your privacy and your business.

Oh, and if you're thinking about just shooting down any drones flying overhead; think twice about it.

In an article titled, "To shoot or not to shoot? The legality of downing a drone," Jamie Nafziger, partner at Dorsey & Whitney LLP, explains, "Producers and growers often ask, 'Can I down a drone that is taking pictures of my property, facilities, or animals without my permission?' This question pits the rights of landowners -- to privacy and quiet enjoyment of their land -- against the property rights of Unmanned Aircraft System (UAS) owners.

"The question also implicates where, when, and in what manner it is lawful to discharge a firearm. Federal aviation laws regarding shooting aircraft also come into play.

"Landowners have the fundamental legal right to privacy and to enjoy their property free from nuisance, interference, or trespass. Owners to personal property have the fundamental legal right not to have their property damaged or taken. The downing of unwanted UAS over private land sets these two fundamental rights against one another."

With several examples, Nafziger details why shooting a drone is a bad idea. So what are your options if there is an unwanted drone overhead?

She writes, "When it comes to nuisance drones, landowners are stuck. If they shoot down a drone, they may face criminal and civil penalties. However, without the ability to identify a drone operator remotely, they can't necessarily count on getting relief from courts or government authorities.

READ: Watch out for activist drones

"If reaching for the old Mossberg isn't the best option, then what recourse do landowners have? Landowners may seek relief under a variety of UAS laws. At least 13 states have passed laws restricting UAS surveillance of individuals without consent, and under most states' laws, individuals have a reasonable expectation of privacy.

"The Arkansas statute is representative. It is a crime to 'knowingly use an unmanned vehicle or aircraft ... to secretly or surreptitiously ... view by electronic means a person' without his consent, or under circumstances where he has a reasonable expectation of privacy.

"Some states have passed agriculture-related UAS laws. In Utah, it is a misdemeanor to chase, disturb or harm livestock with a UAS. In Texas, it is a crime to fly a UAS over animal feeding operations. In February 2017, an Oklahoma state senator introduced a bill that would exempt landowners from liability for damage to a UAS under certain conditions."

So, are you protected from the economic damage of drone footage being used against you in an undercover animal rights activist documentary? Again, the answers are quite unclear, and it really just depends on the sate, the circumstance and the court's interpretation of the law.

I don't know about you, but the lack of clarity doesn't have me feeling warm and fuzzy about agriculture's property protection and privacy laws. With election day coming up, this might be a good question to ask the folks running for office what their views are and work from there to ensure the laws in your state are up to snuff to protect you and your business.

The opinions of Amanda Radke are not necessarily those of or Farm Progress.

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