Netflix’s recent docuseries on the Duke and Duchess of Sussex has revealed plenty to unpack for an audience interested in the Royal Family.[1] A central theme to the series is the Sussexes’ tense relationship with the press throughout their love story, which has been characterized by British tabloids running an extraordinary amount of negative stories about Meghan Markle, with several tying her to negative race-based stereotypes.[2]
Markle has been vocal about the negative turns her emotional health took as a result of British tabloids’ onslaught of attacks, even causing her to contemplate suicide.[3] By surrounding the Sussexes in both public and private by air, land, and sea, the media demonstrated its persistence in getting pictures of the couple.[4] One striking scene depicts drones flying over a Los Angeles home where the Duke and Duchess took refuge after being stripped of private security because they stepped back from their roles as working members of the Royal Family in early 2020.[5]
While the series highlights some of the Sussexes’ successes in court battles against the media for invasion of privacy,[6] they are not the only people concerned about drone intrusions—this issue affects everyday people, too.[7] States’ attempts at drone regulations may conflict with the First Amendment, however, so content-neutral drone use restrictions will be essential moving forward.[8]
The Committee to Protect Journalists advises that reporters do not possess a right to trespass in pursuit of a story.[9] Yet, the definition of trespass largely varies by jurisdiction. California—home to many celebrities, including the Sussexes—defines trespass as willfully entering the land of another without permission when the land is enclosed by a fence or has “no trespassing” signs posted.[10] Violations are punishable by a $75 fine for initial violations and $250 for subsequent violations.[11] This regime offers a standard deterrent for many Americans, but it nevertheless has two vital flaws: (1) no acknowledgement of trespass by air and (2) a fine that is too low to deter major corporate entities when an agent commits a trespass.
First, while drone and helicopter trespass is debated in national discussions, the Federal Aviation Administration (“FAA”) has refrained from taking action so far, despite having exclusive jurisdiction over the regulation of commercial airspace.[12] State and local entities are allowed only to regulate “No Drone Zones” that dictate where drones cannot take off or land, without controlling where drones actually fly.[13] To combat this toleration of aerial invasions, states should be able to regulate drones themselves.
As noted above, state drone regulations would need to be content-neutral to survive First Amendment challenges. This means a state or municipality likely could not institute a permit system limiting who can operate drones and under which conditions because this would not be a time, place, and manner restriction.[14] An alternative solution would be to prohibit corporate entities from using helicopters and drones to surveil private property and to consider air surveillance a trespass with criminal sanctions.[15] Under this framework, invasion of privacy would extend to use of aircraft, allowing for corporations to be held liable when the entity gives publicity to a matter concerning the private life of another which is highly offensive to a reasonable person and is not of legitimate public concern.[16] In the case of the Sussexes, whether the everyday activities of Prince Harry and his children qualify as matters of public concern because they remain in line for the British throne would be determined by a court of law, not the court of public opinion or tabloids.[17]
Second, to deter invasive drone use, the FAA should threaten license suspension and severe fines for corporate entities who abuse their drone privileges to invade others’ privacy. Suspensions should apply to agents who use aircraft as a means of seeking exclusive photography or videography for their employers. However, since it seems that the FAA is focused on expanding where drones can fly and is reluctant to enter drone trespass rulemaking, state laws and regulations could serve as a temporary substitute and a springboard for pressuring the FAA to act.[18]
A free press is one of the most necessary functions in our society. However, enhancing trespass ordinances could serve as a needed check on media outlets’ ability to intrude on the private lives of public and private figures. This limitation is necessary to promote a more compassionate society which respects individuals’ privacy and personal boundaries while balancing the public’s right to know information about public figures.
[1] Harry & Meghan (Netflix 2022).
[2] Danica Kirka and Jill Lawless, Harry and Meghan Slam British Tabloids in New Netflix Series, AP News
(Dec. 8, 2022), https://apnews.com/article/king-charles-iii-princess-diana-meghan-markle-prince-harry-royalty-0f1fb22ed38f77b99970e7739ac52f98.
[3] Rosa Sanchez, Meghan Markle Talks Mental Health and How Prince Harry Helped Her at Her “Worst Point”, Harper’s Bazaar (Oct. 11, 2022), https://www.harpersbazaar.com/celebrity/latest/a41585663/meghan-markle-mental-health-archetypes-podcast/.
[4] Harry & Meghan, supra note 1, at episode 6.
[5] Id.; see also Amy Mackelden, Meghan Markle and Prince Harry Contact the LAPD After Drones Fly over Their California Home, Harper’s Bazaar (May 28, 2020), https://www.harpersbazaar.com/celebrity/latest/a32697569/meghan-markle-prince-harry-lapd-drones-california/.
[6] Harry & Meghan, supra note 1; see also Marisa Dellatto, Meghan Markle to Receive £1 from Newspaper Over Privacy Invasion—But That’s Not All, Forbes (Jan. 5, 2022, 1:58 PM), https://www.forbes.com/sites/marisadellatto/2022/01/05/meghan-markle-to-receive-1-from-newspaper-over-privacy-invasion—but-thats-not-all/?sh=5075489a3d88 (describing Markle’s symbolic award for prevailing in litigation against British tabloids for invasion of privacy and copyright infringement).
[7] Meghan Bragg, Yes, It Is Legal to Fly a Drone Right Over Someone’s House in North Carolina, WCNC Charlotte (Apr. 4, 2022, 12:46 PM), https://www.wcnc.com/article/news/verify/drone-fly-home-legal-verify-charlotte-nc/275-9fb6b363-7530-44d5-b110-66cc3ed26df4.
[8] Angus M. Thuermer Jr., Lawmakers Aim High with Drone Trespass Draft Bill, Wyoming News Exch. (Sept. 7, 2022), https://www.wyomingnews.com/rawlinstimes/news/lawmakers-aim-high-with-drone-trespass-draft-bill/article_438963cc-2d32-11ed-be6c-17328b6c237d.html.
[9] Stories Involving Private Property, Comm. Protect Journalists, https://cpj.org/reports/2012/04/civil-matters-and-disturbances/#:~:text=You%20do%20not%20have%20a,advertised%20political%20rallies%20or%20events.
[10] Cal. Penal Code § 602.8 (West 2004).
[11] Id.
[12] The FAA Modernization and Reform Act of 2012 (FMRA) directed the FAA to integrate private drones into national airspace, while also restricting the FAA from regulating hobby drones. See FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, 126 Stat. 11 (codified 49 U.S.C. § 40101); see also Off. of Gen. Couns., State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Fed. Aviation Admin. (Dec. 17, 2015), https://www.faa.gov/sites/faa.gov/files/uas/resources/policy_library/UAS_Fact_Sheet_Final.pdf. For discussions about FMRA and its impact on the FAA’s regulation of civil drones, see generally Matthew J. Strong, Note, Oh the Drone-Abilities!: Hollywood’s Drone Pursuit Heats Up and the FAA Can’t Stop It, 34 Cardozo Arts & Ent. L.J. 863 (2016) (discussing flaws in FAA drone policies as they treat independent filmmakers seeking to use drones); Kyle Joseph Farris, Note, Flying Inside America’s Drone Dome and Landing in Aerial Trespass Limbo, 53 Val. U.L. Rev. 247 (2018) (proposing that a definition for aerial trespass be added to the Restatement of Torts); Lane Page, Note, Drone Trespass and the Line Separating the National Airspace and Private Property, 86 Geo. Wash. L. Rev. 1152 (2018) (proposing the FAA implement a “bright-line height minimum” to allow states to regulate drone trespass).
[13] No Drone Zone, Fed. Aviation Admin., https://www.faa.gov/uas/resources/community_engagement/no_drone_zone.
[14] Permits could be deemed a prior restraint on the media, as the Supreme Court found in cases like National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977) (holding a court-imposed injunction which infringes on a party’s First Amendment right must allow for immediate appellate review or a stay pending appeal), Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (holding an ordinance charging non-nominal fees to obtain a protest permit constituted an impermissible prior restraint which violated the First Amendment), and Saia v. New York, 334 U.S. 558 (1948) (holding an ordinance which restricted use of amplification devices without permission of the Chief of Police was an impermissible prior restraint which violated the First Amendment).
[15] Any regulation on the personal use of drones would not interfere with government use of drones as part of active investigations.
[16] Cf. Restatement (Second) of Torts § 652(b) (defining intrusion upon seclusion).
[17] Succession, Royal Family, https://www.royal.uk/succession (describing the line of succession for the British Royal Family).
[18] New Drone Rules Take Effect Today, Fed. Aviation Admin. (Apr. 21, 2021), https://www.faa.gov/newsroom/new-drone-rules-take-effect-today.