Potential Liability

Why You Should Read this Chapter: While most citizen science projects will not implicate legal concerns, there are nonetheless various laws that can limit your ability to gather information.  This chapter gives an overview of these laws and provides suggestions on how to remain in compliance with them.  It also notes areas where you may have a legal privilege to engage in certain activity, so that you can respond proactively.  The content of this chapter is supplemented by Appendices 1 and 2, which provide a state-by-state analysis of the laws discussed. 

In most instances, we anticipate that you will not encounter legal difficulties in conducting research for your citizen science project.  Your project’s site of interest (which you identified as part of your project approach in Chapter 1) may be open to all citizens – meaning there are no legal barriers in collecting samples of air, water, and/or soil quality, or taking photographs.  Many federal and state agencies have issued guidelines that are favorable to the practice of citizen science.  In sum, you should not let the fear of legal troubles deter you from pursuing your project.  But, you should be aware of the laws that might apply to your project.

Legal topics covered in this chapter include:

  1. Trespass
  2. Loitering
  3. Stalking
  4. Privacy
  5. Drone use
  6. Critical Infrastructure
  7. Agency regulations

This chapter outlines the various legal claims that have been asserted (rightly or wrongly) against citizen scientists.  It aims to arm you with some general knowledge, including things you are well within your rights to do as well as things you should avoid doing.  Should you encounter a legal threat in the course of your project, our hope is that you will be able to figure out whether that threat is real or mere puffery, allowing you to take full advantage of your legal rights.  Because many types of potential liability relate to actions you might take on private property, we begin by discussing property ownership.

 

Making Connections Between Chapters:  In Chapter 1, you identified your project’s focus and used that focus to design your project’s approach, which included the identification of a site of interest to you (e.g., a natural resource or a pollutant source).  In Chapter 3, you collected publicly available information on any pollutant sources relevant to your project. 

This chapter provides resources for you to extend this previous work, helping you to determine or verify property ownership of land on and surrounding your project site (e.g., where you will collect samples).  It then gives an overview of legal issues relevant to your sample collection design.  This information can guide the scope of your information generation strategy (discussed in Chapter 5). 

Property Ownership

Who owns the land where you want to gather information or collect samples?

In addition to securing any publicly available records that are relevant your project goals (discussed in Chapter 3), you should take steps to learn about ownership of the land where your project site is located, as well as the land surrounding it. One way to determine the ownership status of your project’s site of interest is to use Geographic Information System ("GIS") maps. GIS maps layer data over geography, allowing interactive visualization of geographic information on the map.[1] Many GIS maps display property lines and ownership information.[2]

A related resource is your local assessor’s office, which maintains a public database of local property ownership. You can submit a request to your assessor’s office to determine a given parcel’s ownership information so long as you have the property’s parcel number (oftentimes, this parcel number can be found using GIS maps). Note that many offices provide this information online – meaning you do not have to go in person to find certain information or submit a request for further information.[3]

Property ownership determines whether you may access a property and whether you may collect samples, photos, or other information. For example, strict trespass and privacy laws apply to private property. Public property is managed by various government agencies that have their own special rules about who can access the land and for what purposes. Public lands can be roughly split into the following categories:

Federal Land: Land owned by the federal government is managed either by the Department of the Interior or by the Department of Agriculture’s Forest Service.[4] Within the Department of the Interior, the Bureau of Land Management is tasked with overseeing the majority of the federal government’s on-shore landholdings, which add up to about 1/8 of the nation’s land.[5] These federal landholdings are especially concentrated in western states; nearly 80% of Nevada, for example, is federally-owned land.[6]

State Land: Each state has its own land-holding agencies that oversee the use of state-owned property. These generally include a state-wide Parks Department and a Department of Natural Resources. A great deal of state-held land – about 3/4 – is in the form of trust lands—lands held by the state to benefit specific public purposes, most commonly to support public schools.[7] While some of these trust lands are commercially leased and unavailable to the public, in many cases they are open to public access. You should check with the state’s Department of Natural Resources or Parks Department to see what activities are permitted in state parks and trust lands.  Drone use and certain research activities, for example, may be restricted or prohibited.

Local/Municipal Land: A lot of public property is also managed at the local or municipal level. Municipalities can own and rent land within city limits.[8] Many local parks, cemeteries, and waterways are subject to local ownership and control.[9] Generally, a municipality’s Parks & Recreation Department or Water Department will have authority to administer such lands—and control access.

Maritime Territory: Management of the oceans is split between the state and federal governments. The first three nautical miles from the coast are considered state property and are managed by the states.[10] The next nine nautical miles are U.S. territorial waters that are managed by the federal government (i.e., the territorial sea).[11]  Different federal agencies are responsible for regulating particular types of activities in federal waters. The Bureau of Ocean Energy Management ("BOEM") and the Bureau of Safety and Environmental Enforcement ("BSEE"), both part of the Department of the Interior, manage offshore energy exploration and development.[12]  The National Marine Fisheries Service regulates fisheries and is responsible for the stewardship of marine protected species.[13]  The EPA has general authority over pollution discharges not associated with energy development and minerals (which would fall under BOEM/BSEE’s purview).  The Coast Guard is the primary law enforcement authority in these waters.[14]

Knowing the property lines and ownership status of properties you want to access is an important first step when it comes to determining what you are allowed to do on the property. Knowing who owns the property on which you want to conduct research may have another benefit: in many cases, reaching out to the property owner or managing agency ahead of time to see if you can conduct your citizen science project on their land will resolve any disputes at the outset. For example, you can avoid the risk of trespass liability if you have already received permission from the property owner to conduct research on his or her land.

Potential Legal Challenges

In this subsection, we identify categories of laws that restrict access to land.  Appendices 1 and 2 provide a 50-state survey of the laws discussed in this chapter.  Neither this subsection nor the appendices provide complete and detailed answers about the applicable laws in any given state; instead, they are intended to give you a broad overview of the applicable laws.  We encourage you to use the tools at your disposal, such as local libraries and the internet, to conduct further research about the local laws where you live.  Laws change and evolve; please remember that the resources in this manual do not constitute legal advice, and that you should seek representation should you encounter any legal issues.

1. Trespass

Summary: You commit a trespass only when you go on someone else’s land without the owner’s permission. If you stay on public or private lands where you have permission to be, then trespass laws will not be a problem for your research. If you need to take samples on private land or cross private land to get to your sampling location, then you can seek permission from the property owner. Otherwise, you will generally be safe if you avoid areas that are marked off by fences or “no trespassing” signs. In a few states (indicated in this subsection), you need to use GIS maps to identify property boundaries and therefore avoid accidentally crossing onto someone’s property. Additionally, a few states have specialized laws that punish trespass and even photography around industrial and agricultural sites. You will want to be aware of whether your state has such a law. For the most part, you can avoid trouble under these laws by not entering any clearly off-limits sites – the same advice as with trespass generally. Nonetheless, it would be wise to utilize GIS maps and to be aware of property lines when conducting research around such a facility.

Broadly defined, a trespasser is someone who physically enters or remains on another person’s property without that person’s consent.[15] Liability for trespass generally takes two forms: criminal (prosecution by the government) and civil (private lawsuits). In addition, certain states impose heightened liability for trespass—or even taking photographs—around industrial or agricultural facilities.

a. General Criminal and Civil Trespass

Every state has its own criminal trespass statute. If you are interested in learning more about your state’s criminal trespass statute, you can begin by locating your state’s criminal code online.[16] These statutes generally define trespass as unauthorized entry onto someone else’s land. Beyond that basic definition, many states have varying degrees of criminal trespass, meaning that certain forms of trespass may be punished more severely than others. In Alabama, for example, first degree criminal trespass occurs when a person knowingly enters someone else’s home without permission;[17] second degree trespass occurs when a person crosses, without authorization, onto private land that is fenced off or otherwise bears markers of private property.[18]

The role of notice varies among state criminal trespass statutes. Most states require that, to be guilty of criminal trespass, an individual must have had notice that he or she was entering private property without authorization (e.g., a “no trespassing” sign or a fenced off area). Six states, however, do not require notice: Colorado, Louisiana,Tennessee*, Utah, Wisconsin, and Wyoming. In these states, trespass is an absolute liability crime – meaning that being unaware that you were not supposed to be on the property in question is not a valid defense in these instances.[19] If you are conducting your project in one of these states, you should carefully scrutinize current GIS maps and property records before entering your project’s site of interest.[20] In other states, common sense should suffice: avoid entering fenced or marked-off areas without permission.

In addition to criminal statutes, every state also allows landowners to bring civil lawsuits for trespass. These are generally governed by common law – meaning there is no statute to look at when determining what constitutes civil trespass; the law is developed by judges in their decisions. Many judges define it in the same way as criminal trespass: voluntary entry onto someone else’s property without consent or authorization.[21] Ultimately, this means that you may be liable for any damage you cause to someone else’s property while conducting research on that property. Moreover, even if no quantifiable damage is done, many courts will allow the property owner to recover nominal damages for the very fact of the trespass.[22] However, these nominal damages are typically very small.

b. Specialized Trespass Statutes: Ag-Gag, Data Collection & Critical Infrastructure, Trespass Laws

In addition to basic trespass liability, many states have specialized statutes that address trespass on and monitoring of agricultural facilities, colloquially known as “Ag-Gag laws.” At the time of writing, 22 states had such laws. Ag-Gag laws are compiled in the spreadsheet in Appendices 1 and 2. These statutes tend to have the same basic elements: an alleged trespasser entered or remained on an agricultural facility (i) without effective consent, (ii) intending to disrupt or damage the enterprise conducted at the animal facility, and (iii) had notice that entry was forbidden or received notice to depart and did not. Some also include a separate legal claim for taking photos or videos of such a facility with the intent of damaging its enterprise (e.g., by publishing damning information about it).[23] In summary, when seeking to monitor an agricultural facility, you should check to see if your state has an applicable Ag-Gag law.

Wyoming is currently unique in that it has a trespass law that specifically targets citizen scientists.[24] This statute creates a new criminal offense called “trespassing to unlawfully collect resource data.” [25] The offense is defined as trespassing on private property for the purpose of collecting “data relating to land or land use, including but not limited to data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species.” [26] The statute is triggered either by collecting resource data on private land or by crossing private land to collect resource data on public land.  A violation of this statute triggers enhanced penalties, compared to ordinary trespass.  For a first offense, the punishment is up to one year in prison plus a fine of up to $1,000; the maximum fine is increased to $5,000 for repeat offenders.[27] A related statute allows property owners to bring a civil damages action against trespassers.[28] Someone can be liable under both the criminal and the civil statutes even if the private property boundaries are unmarked.

A number of environmental groups challenged this law in court, arguing that it violates their free speech rights under First Amendment of the U.S. Constitution.  A federal appeals court found that subsection (c) of the statute, which defines the prohibited conduct to include crossing private property in order to collect resource data on nearby public lands, implicates protected speech.  The court therefore sent the case back to the trial court to determine whether this impact on protected speech violated the Constitution.[29]  On remand, the trial court held that subsection (c) violated the First Amendment and enjoined Wyoming from enforcing it.[30]   This decision leaves in place, however, the portions of the law that provide enhanced penalties for trespassing for the purpose of collecting resource data on private property.

Citizen scientists in Wyoming should be especially careful about identifying private property boundaries, particularly because these are often unmarked. One way to accomplish this is by using GIS maps and public records to identify the ownership and property lines in any locations where you want to take samples and along your routes to reach those sites

Finally, some states treat it more seriously when someone trespasses on certain industrial, agricultural, or government-owned facilities.  These laws, which impose heightened liability for trespass on "critical infrastructure," are discussed in-depth in Subsection 6 Critical Infrastructure Laws below.

2. Loitering

Summary: Loitering laws are generally written by local governments rather than states, so it is not possible for us to compile all of the potentially relevant laws. In general, however, you cannot be liable for loitering just because you are hanging around a public place. Courts have held that such “pure” loitering laws are unconstitutional. Instead, loitering laws are typically constitutional only when they target loitering in connection with some otherwise illegal activity. This means that if you follow the suggestions given with respect to the other laws discussed in this chapter, you will likely avoid the possibility of loitering liability. And, you can inform anyone who threatens you with loitering that your conduct is protected.

Loitering is a second offense potentially relevant to your citizen science project. Defined broadly, loitering means hanging around a public place or business without an apparent legal purpose. [31] Generally, loitering laws are established at the local or municipal level. Thus, you will want to check your local area’s anti-loitering provisions before spending time around your identified project site. At least one state, California, includes loitering within its criminal trespass laws (See Subsection 6 Critical Infrastructure Laws below).

The U.S. Supreme Court has invalidated loitering laws that do not include a separate, objective element of criminal behavior (e.g., criminal and specialized trespass, etc.).[32] This undermines the validity of any criminal loitering statute that simply criminalizes loitering in and of itself.[33] As a result, your potential liability for loitering is likely low if you are not also breaking a separate criminal law. You should feel comfortable taking advantage of this aspect of loitering laws: if someone accuses you of loitering when you are otherwise participating in perfectly innocent activity, then you can respond by saying that whatever loitering law they are referring to is not likely to include your conduct.

3. Stalking

Summary: Generally, it is a good practice to maintain a comfortable distance from and to avoid repeated contact with the same individuals in the course of your research (unless they have invited the contact or interaction!). You should especially avoid photographing or filming the same individuals on a recurring basis, which might be interpreted as harassing behavior.

You should also review relevant state stalking laws to determine the point at which conduct is considered stalking and whether “stalking” requires general or specific intent. Typically, stalking laws that require “specific intent” will not apply to your role as a citizen scientist. If the stalking laws relevant to your project’s site of interest require “general intent,” you might consider letting the local community know about your project ahead of time to eliminate any cause for alarm.

If your project involves recurring interaction with or surveillance of the same individuals (e.g., photographing or video recording), you will want to familiarize yourself with your state’s stalking laws.[34] Generally, you can avoid stalking liability if you space your research out temporally and if you avoid repeated contact with the same individuals (unless they have invited the contact or interaction).

Every state has a criminal anti-stalking statute (see Appendices 1 and 2 for specific references to each state).[35] States tend to define stalking as repeated and willful following of another person, often paired with some malevolent purpose or action, such as threatening or harassing behavior.[36] A person violates California’s anti-stalking law, for example, if he or she “willfully, maliciously, and repeatedly follows or harasses another person and makes a credible threat with the intent to place that person in reasonable fear of death or great bodily harm or to place that person in reasonable fear of the death of or great bodily injury of his or her immediate family.”[37]

While state anti-stalking statutes are similar in some respects, they can differ in a few key ways. One difference relates to the point at which conduct is considered sufficiently repetitive and continuous to be considered stalking. For example, Arkansas’s statute requires “a pattern of conduct composed of two (2) or more acts separated by at least thirty-six (36) hours but occurring within one year.”[38] Other states require conduct that is more repetitive and continuous. For example, Alabama requires “a series of acts over a period of time which evidences a continuity of purpose.”[39] Louisiana also requires a “series of acts” for the conduct to rise to the level of stalking.[40]

State stalking laws also differ in whether they require general or specific intent. For stalking laws requiring specific intent, you are only guilty of stalking if you intended to harass or threaten the person alleging the violation; for those requiring general intent, you can be guilty of stalking even if you did not intend to harass the person(s) alleging that you stalked them.

If the relevant state defines stalking as a specific intent crime, it is unlikely that your work as a citizen scientist will expose you to liability for stalking because the purpose of your activity is to conduct research, not to harass anyone.

If the relevant state defines stalking as a general intent crime, however, then you may want to take the extra step of notifying anyone residing on or near the property on which you want to conduct research. You might, for example, post flyers in the neighborhood notifying individuals that you are conducting a citizen science project. If people understand what you are doing in or around their neighborhood, then they should not have reason to be threatened by your presence. It might also mobilize the local community around your citizen science project, in keeping with the spirit of citizen science.

While stalking is generally a crime, thirteen states—Arkansas, California, Kentucky, Michigan, Nebraska, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Virginia, Washington, and Wyoming—also allow civil lawsuits for stalking,[41] so that individuals may recover damages for the emotional distress they experience. As with the criminal stalking laws, these are included in Appendices 1 and 2.

4. Invasion of Privacy

Summary: Privacy laws are relevant when you are working in or around residential areas. If this is true of your project, you should try to notify area residents of your project ahead of time to ease any apprehension they may otherwise feel about your presence. You should also avoid taking and, in particular, publishing photos or videos of people in their homes.

Repeated contact with the same individual(s), especially involving photographing or video recording, may constitute an invasion of privacy. Privacy claims are only available to individual persons and not corporate entities.[42]

There are four basic kinds of legal causes of action for invasion of privacy: (i) unauthorized use of name or likeness; (ii) public disclosure of private matters; (iii) publicity placing one in a highly offensive false light; and (iv) intrusion upon private affairs.[43] Intrusion upon private affairs occurs when someone intentionally intrudes, physically or otherwise, upon another’s solitude or private affairs in a manner that would be offensive to a reasonable person.[44] This could occur when the person alleging the intrusion was at his or her own home or yard when another is taking photographs of him/her; one who enters public space cannot reasonably expect a great degree of privacy.[45]

In general, you can go a long way in avoiding claims of intrusion upon private affairs if you (i) do not enter people’s private space and (ii) exercise caution when taking pictures or videos around people’s homes or publishing those pictures or videos.[46] If your work occurs near private residences and entails visual evidence, make sure that any materials you publish do not include images of persons within those residences. Taking photographs of individuals who are standing outside on their own property, so long as the photographer does not enter the private property, is not considered an invasion of privacy because the conduct is clearly visible to passersby and is therefore effectively public conduct.[47] It can be worthwhile to notify any community members around whom you are working of your project’s goal and scope. Let people know why you are working near their properties, and they will have less reason to feel that you are intentionally intruding upon their privacy.

5. Drone Laws

Summary: Drones may be subject to three different kinds of law: state drone statutes, Federal Aviation Administration (FAA) regulations, and common law. Because state drone law is still developing, you should routinely check state laws. In addition, you should always comply with FAA regulations by appropriately registering your drone. Moreover, you should be careful about using drone photography, as certain states have passed laws criminalizing drone footage of industrial facilities. Finally, drone footage of people in their private residences is also likely forbidden in your state, either by statute or common law.

Drones, or unmanned aircraft systems (“UAS”), are an increasingly popular tool for environmental data collection. UAS have been used for, among other things, identifying the trajectory of an oil spill, tracking toxic algae blooms, measuring water temperature, detecting air contaminants, producing high resolution aerial surveys, and taking water samples. Lawmakers are just beginning to respond to UAS use. As such, the current body of law related to drone use is still developing. It is very likely that some of the information contained in this section, especially the status of state drone legislation, may have changed by the time you read this manual. Therefore, you should be careful to double check the status of drone laws in the state(s) where you are conducting citizen science.

Currently, drone usage is governed by (i) federal law, (ii) state statutes, and (iii) state common law. The following subsections cover each of these categories in turn.

a. Federal Law

The FAA has statutory authority to regulate airspace to the extent necessary to maintain its safety.[48] Drones are considered to be “aircraft” and as such are subject to federal regulation. The treatment of small drones (those weighing less than 55 pounds) varies, depending upon whether they are being used for commercial or recreational purposes. As long as the person operating the drone for a citizen science project is not being paid to do so, citizen scientist use of drones probably falls on the “recreational” side of this dichotomy.[49]

Recreational use of small drones is governed by the Exception for Limited Recreational Operations of Unmanned Aircraft, which Congress adopted as part of the FAA Reauthorization Act of 2018.[50] The Exception requires that UAS operators only fly for recreational purposes; follow a community-based set of safety guidelines; fly the UAS within visual line-of-sight; give way to manned aircraft; obtain permission from the Administrator or her designee before flying within airspace designated for an airport or other restricted uses; fly the UAS not more than 400 feet above the surface; pass an aeronautical knowledge and safety test; and register the UAS with the agency.[51] Operators who comply with the Exception do not need to get pre-approval from the FAA or a Remote Pilot Certificate.[52] 

Because the FAA is primarily tasked with enforcing the safety of public airways, federal law does not touch upon issues of privacy implicated by drone use.[53] The federal government has instead left this area of lawmaking to individual states. Once you have verified that your drone complies with the relevant federal laws and regulations, you should determine whether your state has passed any drone privacy laws.

b. State Statutes - Drone Privacy Laws

Many states have passed statutes pertaining to drone usage and privacy. To date, 27 states impose criminal liability for unlawful drone usage, including the unauthorized surveillance of individuals and certain types of industrial facilities (see Subsection 6 Critical Infrastructure Laws below).  In addition, North Carolina provides a civil cause of action against drone surveillance of persons or private real property without consent.[54]  For an overview of these states, including their specific language, see Appendices 1 and 2.

Importantly, these laws apply to drone photography rather than ordinary handheld photography.[55]  In most instances, taking pictures and video on your own, without drone assistance, will be less susceptible to legal challenges. Accordingly, you should ascertain whether your state has passed a drone privacy law before using a drone for data gathering and consider alternative methods of gathering the information you seek.

5b. Common Law Causes of Action Related to Drone Use

Even when states have not adopted drone privacy laws, civil common law causes of action against drone use may apply. These include nuisance, trespass, and privacy.

a. Nuisance

A private nuisance claim is typically brought when a landowner’s quiet enjoyment of his or her land is disturbed.[56] To succeed on a nuisance claim, a plaintiff must prove: (i) substantial harm; and (ii) that the imposition of the harm is unreasonable.[57]

To date, we are not aware of any cases in which a plaintiff has brought a common law nuisance claim against a drone operator; however, plaintiffs have brought common law nuisance claims and succeeded against airplane operators.[58] Most of these claims have depended on factors like dust production, noise, vibration, and flight frequency.[59] While each of these factors would likely be considered in the context of a nuisance claim brought against a drone operator, they are arguably less applicable to drones than to airplanes. After all, drones produce significantly less dust, noise, and vibrations than airplanes.

There are various steps you can take to avoid claims of nuisance. For example, you can avoid flying your drone over the same space with great frequency. In addition, you can determine whether the noise emitted by your drone exceeds your locality’s noise ordinances, which often outline acceptable levels of noise by property type and time of day. Many localities make this information available online.[60]

b. Trespass

Operating a drone over someone’s private airspace may also constitute common law trespass. This is less likely than in the case of physical, ground-level trespass because ownership of airspace above a property is not as clearly established. Landowners own as much space above the ground as can be reasonably used in connection with the land.[61] What constitutes reasonable use of this airspace remains uncertain; however, one thing is clear: a person’s ownership of airspace above a property is not infinite. At some point, the airspace is in the public domain. Ultimately, the higher you fly your drone, the less likely you are to commit a trespass.[62] Recall, however, that federal law includes explicit height limitations for drone operators—recreational users under the Exception and commercial users under the Part 107 rules must operate the drone below 400 feet.

c. Privacy

A final type of claim worth mentioning in relation to drone use is common law privacy, which has already been covered in this chapter. Many of the suggestions relating to privacy that were previously given are equally applicable in the context of drone use: avoid flying your drone near private residences; try to maintain a healthy distance and keep flight frequency to a minimum; and make sure to notify any local residents of your citizen science project before commencing drone operation. If your drone carries a camera, you should avoid taking and, in particular, publishing pictures of people on their private property.

6. Critical Infrastructure Laws

Summary: Critical infrastructure laws heighten penalties for individual trespass and unlawful drone use (see Subsections 1 and 5 above).  Because state critical infrastructure law is still developing, you should routinely check state laws.  Such research is especially important when you are initially choosing the site of your citizen science project (as discussed in Chapter 1) and the methods of observation.  You should carefully consider whether such restrictions necessitate an attenuated sampling location or different site altogether.

As discussed above, critical infrastructure laws provide heightened penalties for individual trespass and unlawful drone surveillance of certain industrial, agricultural, and government-owned facilities (i.e., critical infrastructure).  This term, and synonymous statutory phrases, often encompass various sites that may be of interest to citizen scientists. For example, under Arizona’s critical infrastructure drone use law, “critical facility” includes, but is not limited to:

“(a) A petroleum or alumina refinery; (b) A petroleum, chemical or rubber production, transportation, storage or processing facility; (c) A chemical manufacturing facility; (d) A water or wastewater treatment facility and water development, distribution or conveyance system, including a dam; (e) An electric generation facility, . . . and any associated substation or switchyard; an electrical transmission or distribution substation; (f) An electrical transmission line of at least sixty-nine thousand volts; an electronic communication station or tower;… (i) An energy control center; (j) A distribution operating center; (k) A facility that transfers or distributes natural gas, including a compressor station, regulator station, city gate station or pressure limiting station or a liquefied natural gas facility or supplier tap facility; (l) Any railroad infrastructure or facility; ….”[63]

It is extremely important to check your state law’s definition of “critical infrastructure” as the covered facilities differ state-by-state, and even between trespass and drone laws within the same state. For example, while Minnesota’s critical infrastructure trespass law applies to belowground pipelines housed in underground structures,[64] Nevada’s critical infrastructure drone use law explicitly excludes “any facility or infrastructure of a utility that is located underground.”[65]

Moreover, as these types of laws are grounded in national security concerns and protecting the continued provision of public services, penalties under these provisions can be significant.  For example, violation of Arizona’s critical infrastructure drone use law is a class 6 felony punishable by a maximum fine of $150,000, imprisonment not to exceed 1.5 years, or both.[66] To avoid these legal dangers, it is essential that you research the critical infrastructure laws in your state before choosing the site of your citizen science project and the means of observation.

a. Trespass

To date, fourteen states impose a heightened penalty when someone trespasses on critical infrastructure.  These states include Alabama, Arizona, California, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, New Jersey, North Carolina, Texas, and Wisconsin.

California’s critical infrastructure trespass statute is unique as the law makes it “unlawful to loiter in the immediate vicinity of any posted property.”[67]  “Posted property” includes oil wells, gas plants, reservoirs, dams, and sanitary sewage and waste water treatment facilities, among other covered entities.[68]  While this statute does not separately define “loitering,” another part of the California criminal code defines the term as “to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.”[69]  This definition limits liability to instances when the person is lying in wait to commit a separately criminalized offense. Accordingly, it is unlikely that a citizen scientist will be found liable under this section unless they loitered with the intent to commit a separate criminal act (see Subsection 2 Loitering).

If your project has identified a power plant, refinery, distribution utility, or other such facility as its site of interest, you will want to take extra care to identify whether your state has a critical infrastructure trespass statute.  For this, you can refer to the comprehensive state spreadsheet and summaries in Appendices 1 and 2. However, please recognize that the laws in this area are changing rapidly, so you will need to double-check the current accuracy of the Appendices before you rely on them.  On a positive note, state laws that have heightened criminal sanctions for trespass on critical infrastructure typically include a notice requirement, meaning liability for trespass occurs when someone has (i) crossed a fence or passed a “no trespassing” sign to get to a sample collection site or (ii) received personal notice to leave the premises from the property owner and refused to leave.[70]  Therefore, in those states, you will not be liable for critical infrastructure trespass as long as those situations do not apply to you.

b.  Drone Use

The most common and potentially problematic drone privacy statutes prohibit the use of a drone to surveil the operations of critical infrastructure.  Arizona, Arkansas, Delaware, Florida, Kentucky, Louisiana, Nevada, New Jersey, Oklahoma, Oregon, Tennessee, and Texas each have such a law.  Arkansas’s law provides that:

  • A person commits the offense of unlawful use of an unmanned aircraft system if he or she knowingly uses an unmanned aircraft system to conduct surveillance of, gather evidence or collect information about, or photographically or electronically record critical infrastructure without the prior written consent of the owner of the critical infrastructure.”[71]

While the definition of critical infrastructure varies by state, as discussed above, it generally includes power plants, refineries, public utilities, etc.  If the target site of your project fits this description, you will generally want to avoid the use of a drone to take pictures or video of that site.

Some drone privacy laws contain exceptions.The Arkansas statute excerpted above, for example, provides an exception for “[a]n unmanned aircraft system used under a certificate of authorization issued by the Federal Aviation Administration.”[72]  Certificates of authorization, however, are available only to public operators of UAS (e.g., state or local governments).[73]  A few states, including Louisiana[74] and Texas,[75] have exceptions for UAS that are flown by universities for research or educational purposes.

Some drone privacy statutes only impose liability for drone surveillance in furtherance of a criminal offense.Arizona’s for example, states that “[i]t is unlawful for a person to operate or use an unmanned aircraft or unmanned aircraft system to intentionally photograph or loiter over or near a critical facility in the furtherance of any criminal offense.”[76]Thus, this statute is presumably inapplicable to drone usage around critical infrastructure in Arizona so long as the conduct does not further a criminal offense, such as trespass. There is not yet any court interpretation of the law, however.

7. Agency Regulations

Summary: This subsection pertains only to public property, which is managed by different agencies at several levels of government. If your project’s site of interest is on public property, you should first identify which agency manages that property. You should then locate that agency’s regulations to identify the permitted uses of that property. Oftentimes, personally contacting the agency is good way to learn about permitted uses of its properties.

If your project’s site of interest is on public property (e.g., a National or State Park), you should first identify which agency manages that property. You should then locate that agency’s regulations and policies to identify the permitted uses of that property.  Laws, regulations, and policies related to drone use and scientific collection in State Parks are noted Appendix 2. Some agencies are very permissive with respect to the public’s use of their lands. However, as agency regulations and policies evolve, especially with regard to drone use, you should make sure to contact an agency representative for comprehensive and up-to-date guidance. 

Many agencies allow collection on public land as long as the land's natural resources are not significantly disturbed or damaged.  The Bureau of Land Management, for example, does not require a permit for “casual uses” of the lands it manages.[77] “Casual use” is defined as “any short term non-commercial activity which does not cause appreciable damage or disturbance to the public lands, their resources or improvements, and which is not prohibited by closure of the lands to such activities.”[78] Thus, if your research does not noticeably damage the Bureau of Land Management's lands, then, you should be able to conduct research on this land without fear of repercussion.

Likewise, the United States Forest Service permits data collection that does not cause appreciable damage. For example, it allows: “[t]he collection of minor forest products, such as flowers, plants, berries, acorns, nuts, or small amounts of medicinal roots, from areas other than designated recreation, research, natural, or other areas closed to such activities. However, such collections are limited to reasonable quantities for personal use; there can be no disturbance of surface resources; and the products must not be protected by Federal or State laws or regulations.”[79]

Of course, not all agencies will make guidance materials available to the public, nor will those materials always be clear. In the above excerpted regulation from the Forest Service Manual, for example, you may have questions as to what constitutes “reasonable quantities for personal use” or “disturbance of surface resources.” The answers to these questions might affect the extent of sample collection you feel comfortable conducting in national forests. If you encounter any ambiguity like this in your background research, a logical first step is to contact the agency directly for clarification. Generally, an agency’s contact information is available on its website. Your inquiry should be as specific as possible. While the response will not constitute binding legal advice, it will often be the most authoritative feedback you can get on the particular rules governing publicly-held property.

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[1] See What is Geographic Information Systems (GIS)?, GIS Geography, http://gisgeography.com/what-gis-geographic-information-systems/ (last updatedJan. 5, 2019).

[2] See, e.g., Mass. Interactive Property Map, Mass. Exec. Office of Admin. and Finance, http://www.mass.gov/anf/research-and-tech/it-serv-and-support/application-serv/office-of-geographic-information-massgis/online-mapping/massgis-par-vwr.html (last visited Feb. 7, 2019) (GIS map of property in Massachusetts); Tennessee Property Viewer, State of Tenn., http://tnmap.tn.gov/assessment/ (last visited Feb. 7, 2019) (GIS map of property in Tennessee).

[3] See, e.g., Automated City Register Information System, New York City Dep’t of Finance, https://a836-acris.nyc.gov/CP/ (last visited Feb. 7, 2019) (New York City’s online property database is commonly referred to as ACRIS). Online property databases, such as ACRIS, may also come with helpful instructions. See, e.g., ACRIS Document Search Online Help, New York City Dep’t of IT & Telecommunications, https://a836-acris.nyc.gov/acrisHelp/docsearch/default.htm (last visited Feb. 7, 2019).

[4] See Summary, in Congressional Research Service, Federal Land Ownership: Overview and Data (Mar. 3, 2017), https://fas.org/sgp/crs/misc/R42346.pdf.

[5] See id. (The United States has 2.27 billion acres of land); see also U.S. Department of the Interior - Bureau of Land Management, Public Land Statistics 2017, at 7 (June 2018), https://www.blm.gov/sites/blm.gov/files/PublicLandStatistics2017.pdf  (the Bureau of Land Management has jurisdiction over 245.6 million acres of public lands).

[6] Congressional Research Service, Federal Land Ownership: Overview and Data (Mar. 3, 2017) at 9, https://fas.org/sgp/crs/misc/R42346.pdf.

[7] See Steven M. Davis, Preservation, Resource Extraction, and Recreation on Public Lands: A View from the States, 48 Nat. Resources J. 303, 306 (2008).

[8] See, e.g., Municipal Association of South Carolina, Forms and Powers of Municipal Government (Dec. 2017), https://www.masc.sc/SiteCollectionDocuments/Administration/Forms%20and%20Powers2.pdf.

[9] Id.

[10] While most state-managed waters only extend out to three nautical miles beyond the shore, the seaward boundaries of Florida (Gulf of Mexico coast only), Texas, and Puerto Rico extend to nine nautical miles. See 43 U.S.C. § 1312; Maritime Zones and Boundaries, Nat’l Oceanic & Atmospheric Administration Office of General Counsel, http://www.gc.noaa.gov/gcil_maritime.html (last visited Feb. 7, 2019).

[11] See Maritime Zones and Boundaries, Nat’l Oceanic & Atmospheric Administration Office of General Counsel, http://www.gc.noaa.gov/gcil_maritime.html (last visited Feb. 7, 2019).

[12] History, Bureau of Safety & Envtl. Enforcement, https://www.bsee.gov/who-we-are/history (last visited Feb. 7, 2019).

[13] See About Us, NOAA Fisheries, https://www.fisheries.noaa.gov/about-us (last visited Feb. 7, 2019).

[14] See U.S. Coast Guard, https://www.work.uscg.mil/ (last visited Feb. 7, 2019).

[15] Cf. Restatement (Second) of Torts §329.

[16] Cornell University’s Legal Information Institute has compiled each state’s criminal code at https://www.law.cornell.edu/wex/table_criminal_code (last visited Feb. 7, 2019). Upon locating your state’s criminal code, you can follow the hyperlink to its criminal trespass laws in the table of contents.

[17] Ala. Code § 13A-7-2.

[18] Ala. Code § 13A-7-3.

[19] Tennessee is the only state from this list that provides a defense to prosecution. However, lack of notice alone is not a sufficient defense. The alleged trespasser must prove three elements: (1) The person entered or remained on property that she reasonably believed to be property for which the owner’s consent to enter had been granted (i.e., lack of notice); (2) The person’s conduct did not substantially interfere with the owner’s use of the property; and (3) The person immediately left the property upon request. Tenn. Code Ann. § 39-14-405(b).

[20] For further information on what these informational tools are and how to access them, see Chapter 3.

[21] Restatement (Second) of Torts §158.

[22] See Foust v. Kinney, 80 So. 474, 475 (Ala. 1918); see also Brown Jug, Inc. v. Int’l Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer., 688 P.2d 932, 939 (Alaska 1984); Hale v. Brown, 323 P.2d 955, 963 (Ariz. 1958) (It is a “well-established and deeply-rooted legal principle that a person has the right to vindicate any trespass upon his legal rights . . . for at least nominal damages.”).

[23] See, e.g., Kan. Stat. Ann. § 47-1827(c)(4).

[24] Wyo. Stat. § 6-3-414(a).

[25] Id.

[26] Id. § 6-3-414(e)(iv).

[27] Id. § 6-3-414(d).

[28] Wyo. Stat. § 40-27-101(d).

[29] W. Watersheds Project v. Michael, 869 F.3d 1189 (10th Cir. 2017).

[30] W. Watersheds Project v. Michael, 353 F. Supp. 3d 1176 (D. Wyo. 2018).

[31] See Loitering, The Free Legal Dictionary, http://legal-dictionary.thefreedictionary.com/loiter (last visited Feb. 7, 2019).

[32] See generally Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); City of Chicago v. Morales, 527 U.S. 41, 41-45 (1999).

[33] See Note, Striking a Balance: The Efforts of One Massachusetts City to Draft an Effective Anti-Loitering Law Within the Bounds of the Constitution, 39 Suffolk U. L. Rev. 1069, 1081 (2006); Kim Strosnider, Note, Anti-Gang Ordinances After City of Chicago v. Morales: The Intersection of Race, Vagueness Doctrine, and Equal Protection in the Criminal Law, 39 Am. Crim. L. Rev. 101, 126 (2002).

[34] As with criminal trespass laws, stalking laws are often classified into varying degrees. Generally, higher degree stalking crimes include the issuance of credible threats, repeated convictions, contact in violation of a restraining order, stalking of a minor, and harassment on the basis of sex, race, religion, or sexual orientation. Because your behavior as a citizen scientist will not likely encompass any of these aggravating factors, this subsection and Appendices 1 and 2 focuses on lower degree stalking violations.

[35] See Kathleen G. McAnaney, Laura A. Curliss & C. Elizabeth Abeyta-Price, Note, From Imprudence to Crime: Anti-Stalking Laws, 68 Notre Dame L. Rev. 819, 821 (1993).

[36] Id.

[37] Cal. Penal Code § 646.9(a).

[38] Ark. Code Ann. § 5-71-229(f)(1)(A).

[39] Ala. Code. § 13A-6-92(a).

[40] La. Rev. Stat. 14:40.2(C)(2).

[41] Stalking Resource Center, Civil Stalking Laws by State, https://victimsofcrime.org/our-programs/stalking-resource-center/stalking-laws/civil-stalking-laws-by-state (last updated October 2017).

[42] See Restatement (Second) of Torts § 652I(c); see also United States v. Morton Salt Co., 338 U.S. 632, 652 (1950) (“[C]orporations can claim no equality with individuals in the enjoyment of a right to privacy.”); Fleck & Assocs., Inc. v. Phoenix, City of, an Arizona Mun. Corp., 471 F.3d 1100, 1104-05 (9th Cir. 2006) (holding that a corporation is not entitled to “‘purely personal’ guarantees,” such as a right to privacy, which has “historically been granted to protect individuals”); Elizabeth Pollman, A Corporate Right to Privacy, 99 Minn. L. Rev. 27, 37-44 (2014).

[43] Vincent R. Johnson, Advanced Tort Law: A Problem Approach 312 (1st ed. 2010).

[44] Restatement (Second) of Torts § 652(B).

[45] Phillip Hassman, Taking Unauthorized Photographs as Invasion of Privacy, 86 A.L.R. 3d 374 (Originally published in 1978); see also Truxes v Kenco Enterprises, Inc. 119 N.W.2d 914, 919-20 (S.D. 1963) (post office worker’s invasion of privacy claim for an unauthorized photo taken of him while at work failed due to his place of employment not being a private space).

[46] See Hassman, note 43.

[47] See, e.g., United States v. Santana, 427 U.S. 38, 42 (1976) (holding that there is no expectation of privacy when an individual is “exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house”); Swerdlich v. Koch, 721 A.2d 849, 857-58 (R.I. 1998) (“The plaintiffs were not entitled, nor could they reasonably have expected, to maintain privacy with respect to those activities taking place outside of their residence in a location visible to any passersby.”); Sundheim v. Board of County Comm’nrs, 904 P.2d 1337, 1351-52 (Colo. App. 1995) (“Because there is no invasion of privacy involved in observing that which is plainly visible to the public, a person’s real property is not protected from observations lawfully made from outside its perimeter.”).

[48] The use of small drones, defined as those weighing fewer than 55 pounds, is governed by 14 C.F.R. pt. 107.  While small drones do not need to undergo the extensive airworthiness certification requirements imposed on larger aircrafts, they are still subject to many of the same rules.  Drones weighing more than 55 pounds will need to undergo the airworthiness exemption process outlined in 49 U.S.C. § 44807.  See Special Authority for Certain Unmanned Aircraft Systems (Section 44807), Federal Aviation Administration, https://www.faa.gov/uas/advanced_operations/section_333/ (last updated Dec. 14, 2018).

[49] Commercial use of drones is governed by the “Part 107” rules.  See 14 C.F.R. pt. 107.  Under these rules, an operator must obtain a Remote Pilot Certificate or be under the direct supervision of someone who holds such a certificate, register the UAS with the FAA, and adhere to a set of operating guidelines, including: (1) fly the drone at or below 400 feet; (2) keep the drone within the operator’s line of sight; (3) be aware of FAA Airspace Restrictions; (4) respect privacy; (5) do not fly near other aircraft, especially near airports; (6) do not fly over groups of people, public events, or stadiums full of people; (7) do not fly near emergencies such as fires or hurricane recovery efforts; and (8) never fly under the influence of drugs or alcohol. See Getting Started, Unmanned Aircraft Systems, Federal Aviation Administration, https://www.faa.gov/uas/getting_started/ (last updated Oct. 18, 2018). Some of the activities listed above may be allowed after obtaining a waiver. See Certificated Remote Pilots including Commercial Operators, Unmanned Aircraft Systems, Federal Aviation Administration, https://www.faa.gov/uas/commercial_operators/ (last updated Dec. 18, 2018).

[50] Pub. L. No. 115–254, § 349, 132 Stat. 3,186, 3,297-98 (2018) (codified at 49 U.S.C. § 44809).

[51] 49 U.S.C. § 44809(a).

[52] See id.; see also Recreational Fliers & Modeler Community-Based Organizations, Unmanned Aircraft Systems, Federal Aviation Administration, https://www.faa.gov/uas/recreational_fliers/ (last updated Jan. 30, 2019).

[53] Patrice Hendriksen, Note, Unmanned and Unchecked: Confronting the Unmanned Aircraft System Privacy Threat Through Interagency Coordination, 82 Geo. Wash. L. Rev. 207, 228-38 (2013).

[54] N.C. Gen. Stat. § 15A-300.1(b) & (e).

[55] Ark. Code § 5-16-101 is an exception.

[56] Restatement (Second) of Torts §821D.

[57] Id.

[58] See Michelle Bolos, A Highway in the Sky: A Look at Land Use Issues that will Arise with the Integration of Drone Technology, 2015 U. Ill. J.L. Tech. & Pol’y 411, 422 (2015).

[59] See Jack L. Litwin, Airport Operations or Flight of Aircraft as Nuisance, 79 A.L.R.3d 253 (Originally published in 1977).

[60] See, e.g., Noise Control, Cambridge, Massachusetts, Municipal Code ch. 8.16, https://www.municode.com/library/ma/cambridge/codes/code_of_ordinances?nodeId=TIT8HESA_CH8.16NOCO&searchText=  (last visited Feb. 7, 2019).

[61] United States v. Causby, 328 U.S. 256, 264 (1945).

[62] The Restatement (Second) of Torts provides an indication as to how this rule might be interpreted: “In the ordinary case, flight at 500 feet or more above the surface is not within the ‘immediate reaches,’ while flight within 50 feet, which interferes with actual use, clearly is, and flight within 150 feet, which also so interferes, may present a question of fact.”  See Restatement (Second) of Torts § 159, Comment on Subsection (2).  You should remain attentive to any developments in this area occurring after the publication of this manual.  To that end, many online blogs and journals offer up-to-date posts on major developments in drone law.  See, e.g., Drone Law Journal, http://dronelawjournal.com/ (last visited Feb. 7, 2019); Drone Law Blog, Rupprecht Law P.A., http://jrupprechtlaw.com/drone-law-blog  (last visited Feb. 7, 2019).

[63] Ariz. Rev. Stat. § 13-3729(F)(3).

[64] Minn. Stat. § 609.6055.

[65] Nev. Rev. Stat. § 493.020(2).

[66] Ariz. Rev. Stat. §§ 13-3729(E), 13-702(D); 13-801(A).

[67] Cal. Penal Code § 555.2.

[68] Id. § 554.

[69] Id. §§ 647(h), 653.20(c).

[70] See, e.g., Ala. Code § 13A-7-4.3(b).

[71] Ark. Code § 5-60-103(b).

[72] Ark. Code § 5-60-103(a)(2)(B)(v).

[73] Certificates of Waiver or Authorization (COA), Federal Aviation Administration, https://www.faa.gov/about/office_org/headquarters_offices/ato/service_units/systemops/aaim/organizations/uas/coa/  (last visited Feb. 7, 2019).

[74] La. Stat. Ann. § 14:337(D)(2).

[75] Tex. Gov’t Code § 423.002(a)(1).

[76] Ariz. Rev. Stat. § 13-3729(B).

[77] 43 C.F.R. § 2920.1–2(a).

[78] 43 C.F.R. § 2920.0–5(k).

[79] Forest Service Manual § 2719(9) (2014), https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd526455.pdf.

 

 

 

Discussion

Please note that this discussion is not moderated by the Emmett Environmental Law & Policy Clinic.