Drones harvest incredible photos and video, but are they invading our privacy and threatening our safety?
By Kim Kavin
We heard it before we saw it. At first the buzz was distant, as if somebody in the marina had started an electric motor, but within seconds, the hum was like a nasty horde of hornets. The deafening sound from the sky shattered our quiet lobster lunch. By the time we even realized it was headed our way, the drone was upon us.
“How close are they allowed to get?” one guest asked, raising her napkin to her face as if she might duck behind it for cover. “Can it fly across the cockpit?” another guest wondered with worry. The captain shook his head, watching the remote-controlled machine with spinning metal parts fly closer and closer to his multimillion-dollar command with its entangle-worthy rigging and beautifully finished hull. “I don’t know,” he said. “I just don’t know.”
Drones are suddenly everywhere on and about the water. Like personal watercraft, all-terrain vehicles and snowmobiles, we love them when we’re the ones using them, but otherwise, they can be a nuisance. Moreover, they represent a growing threat to our privacy and our safety as we seek the escape and serenity yachting affords. While they produce dazzling images, still and video, their inherent intrusiveness is pushing boundaries not even the most invasive paparazzi can reach. And the disturbing truth is, there may not be much we can do about it.
Civilian-owned, propeller-driven drones are a relatively recent phenomenon. With a decent-quality drone that can be had for less than a thousand dollars, a photographer can fly up and over the sundeck, hover in the cockpit or peer into a yacht beach club. He can zoom in on whatever he wants. He can chase us on water-skis or Sea-Doos and gain 360-degree views of us no matter which direction we turn.
Legal experts compare the rapid rise in drone use and the privacy questions they’re raising to the outrage that came with the mass availability of cameras in the early 1900s. Some of those privacy concerns obviously linger today and, in some respects, are far worse than earlier generations feared, but with cameras installed on every smartphone in the world, that shutter long ago snapped closed. As privacy law stands today, in many places, the law is on the side of the drone operators along with other camera users.
“It’s completely creepy,” says Erik Syverson, a Beverly Hills-based partner at Raines and Feldman who deals with high-profile clients and specializes in privacy law. “Assuming it’s buzzing overhead, I don’t see any privacy rights here at all. You’re out in open water, you’re out in public, you’re in marinas—I don’t think the law has any privacy tools in this scenario.”
That remains true no matter how the drone is outfitted, which today can mean everything from a GoPro camera to infrared lenses and 3-D capabilities. As with any new technology, when used for good, the results can be smashing. When used with ill intent, you want to smash it.
“It’s the Wild West,” says Andrew Amato, editor-in-chief of Dronelife, which covers drone news. “We live in a time and a place where people are asking can I instead of asking should I. By the end of the year, there will be a drone on the market that you can fit on a WaveRunner and tell it what angle you want, and it will take off and follow you on the WaveRunner. Great idea—but if you drive the WaveRunner near the yacht, it will crash into the boat. Sure you can, but should you? Probably not.”
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Governments worldwide are working on ways to catch up with evolving drone technology, such as requiring users to have a pilot’s license. In America, drone enthusiasts are taking a hard line against the Federal Aviation Administration, which says commercial use of drones is illegal. Arguably that could include professionals shooting boat brochures and guest or crew use aboard yachts operating commercially for charter—but some experts say there aren’t actually any statutes, case law or legislation that make the FAA rule legitimate. In other words, the FAA has questionable legal ability to back up its demands for people to stop using drones commercially, and it has in fact lost a few recent cases where drone operators fought back with lawyers.
Experts say time will sort out the legal issues. In the case of privacy, the law is already clear and the fight is likely to be short. “There’s a body of law there that can handle it,” says media attorney Mark Caramanica, an associate with Thomas & LoCicero in Tampa, Florida. “Cooler heads prevail, and we establish norms of how these things are going to be integrated.”
In the case of safety, though, there is a legal war to be had, and it’s being waged now. On all sides, people say the same two things: Drones aren’t toys, and users have to think before they act. Of course, reality is often the opposite, which is why the drone issue came to a head this past June at the biennial Newport to Bermuda Race. Organizers made their own rules about drones, outlawing them at the starting line.
“They said nobody is allowed to fly them at the start because the helicopter pilots were concerned,” says marine photographer Onne van der Wal, who got his first drone in March. “I agree with that because there are too many idiots flying drones, unconcerned with what’s above you.”
At the same time, van der Wal says, safety issues soon give way to the public domain and an individual’s right to take photos on the world’s waters. “I’m above the water 95 percent of the time,” he says. “Rhode Island just put in a law that says you’re not allowed to fly those things over sports games or festivals or places with a high concentration of people, but those laws don’t affect me. Most times, I’m out in the water with one boat doing a project. Who’s going to stop me out there? Sure, the Coast Guard can come out, but I’d stop and put it away, end of story.”
Even the makers of drones are urging buyers to act responsibly. One marketer says his biggest concern is a drone—with spinning blades and metal parts—hovering over a crowd at an event like, say, the St. Barths Bucket. If the battery dies and the drone goes down, someone could end up in the hospital.
Syverson says safety concerns also could give way to legal actions involving harassment and intentional affliction of emotional distress. After all, in our world today, not all drones are benign instruments carrying cameras.
“If I’m on a yacht and I see a drone, should I be wondering if it’s going to drop a bomb?” he asks. “If I’m the captain, I’d probably take a baseball bat and take a swat at it. Are you going to get sued for destroying property? Maybe, but you also have fear of assault.”
At the end of the day, we all want the photos and videos; even the professionals are amazed at what’s possible with the new angles. “Oh my God, how the hell did you do this?” one art director asked van der Wal recently. “It’s pretty exciting stuff,” he says.
And yet, we also don’t want to be sitting in our cockpits or riding in our tenders or doing anything else with drones making us feel violated. As the law is being argued, yacht owners may be among the world’s leaders in determining what will, and will not, be allowed.
“The downside of someone operating a drone like this is that you’re picking fights with people who have money and who are generally not strangers to litigation,” Syverson says. “They can generally fight this out and figure out where the lines need to be drawn. For now, I guess, what’s that Frank Sinatra move? Break the camera and throw some hundred dollar bills at the guy. Write a check for the drones. Sooner or later they get the message.”
