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Some say laws protecting the public from voyeuristic drone photographers are lax

  • Larry Harper poses for a drone photograph at home in Sutton, N.H., on Thursday, Sept. 26, 2017. (Rob Strong photograph)

  • Larry Harper photographed at home in Sutton, N.H., on Thursday, Sept. 26, 2019. (Rob Strong photograph)

  • Larry Harper poses for a drone photograph at home in Sutton, N.H., on Thursday, Sept. 26, 2019. (Rob Strong photograph)

  • A photographer's drone flies over the tennis courts to capture aerial images of Storrs Pond Recreation Area in Hanover, N.H., on April 20, 2016. (Valley News - Sarah Priestap) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

Valley News Staff Writer
Published: 9/28/2019 10:29:37 PM
Modified: 9/28/2019 10:29:35 PM

SUTTON, N.H. — Larry Harper was sitting in the study of his hilltop home one night in July when something outside the window caught his eye.

Hovering near the other side of the window was a drone, complete with flashing white, blue and red lights.

“So somebody was recording me in my study,” Harper, a professional photographer and lecturer at the Osher Lifelong Learning Institute at Dartmouth, said in an interview last month at the 167-acre property where he and his wife live, off Route 114 in Sutton.

Since July, Harper has seen drones outside his home five more times and heard similar complaints from nearby neighbors. He’s tried going to police, but he was told their hands are tied.

“They said, ‘Frankly, we can’t do anything. There’s no laws against voyeurism with a drone,’ ” said Harper.

As drone technology becomes cheaper and available to more people, law enforcement officials say they’re responding to more incidents like the one Harper encountered.

But it’s often difficult to prosecute those invading others’ privacy because the technology is so advanced, and the Granite State’s law is not.

“It’s a widely unregulated area of New Hampshire law right now,” Lebanon Police Chief Richard Mello said in a phone interview. “There’s not, at this point, a specific law that addresses voyeurism with drone flight.”

New Hampshire’s privacy law, which was last updated six years ago, might prove the best tool to combat intruding drones, Mello said, but the statute has its limitations.

For instance, the law prohibits only recordings outside of a “private place” if what’s picked up “would not ordinarily be audible, visible, or comprehensible outside such place.”

That’s generally taken to mean that anything that could be heard by someone standing on a public road or sidewalk is fair game to photograph or record, except for a person’s private parts. Law enforcement is also challenged by the state’s definition of “private place,” which includes the inside of one’s home, locker rooms and public bathrooms, according to Mello.

While it’s easy to figure out where privacy should start at the street level, those calculations become much more difficult when accounting for flight, he said.

“There is difficulty in trying to kind of force these existing laws to deal with each incident we might be preparing for,” Mello said.

Phone messages left for Sutton Police Chief Jonathan Korbet were not returned, and the New Hampshire Attorney General’s Office declined to comment on whether the state’s privacy law applies to drones.

However, concerns that the current law isn’t enough led former state Rep. Neal Kurk, R-Weare, to propose tightening drone regulations several times during his 32 years at the Statehouse.

“They have these wonderful possibilities but they can be used legally for things that would feel to us like an invasion of our privacy,” said Kurk, who retired last year.

Most people have an expectation of privacy formed before the advent of drones, and assume by putting up hedges, fences and other barriers around their home, people won’t be able to see in, Kurk said.

But drones changed that, and those ground-level barriers no longer shield the occasional sunbather enjoying their own backyard from view, he said.

Kurk sponsored several bills that sought to curtail drone operators, prohibiting them from flying less than 250 feet over private property or recording individuals who couldn’t be seen from street level. The bills also sought to limit police use of drones, requiring a warrant for most investigations.

While Kurk’s drone legislation passed the House on a voice vote in 2017, it died in the New Hampshire Senate after advocates argued it would overburden drone operators and preempt federal law.

“Businesses didn’t want those restrictions, whatever they might have been,” Kurk said. “The Senate is more sensitive to business issues than perhaps the House is.”

In neighboring Vermont, the state’s regulations of drones is also “fairly sparse,” Windsor County State’s Attorney David Cahill said in an email.

One law prevents police from using drones as part of a criminal investigation without obtaining a warrant, while another prohibits attaching weapons to drones.

Jim Cloutier, the president of Auburn, N.H.-based Red Dog Aerial Media, testified against Kurk’s bills and jokingly referred to himself as the former lawmaker’s “nemesis” during a phone interview.

Cloutier asserted that New Hampshire’s existing privacy law already provides protections against drone intrusion. His company uses drones for photography, mapping and inspection services.

He also worried that a state law isn’t capable of keeping up with drone technology, which is quickly evolving.

The federal government regulates two types of drone flyers: commercial and recreational.

“A real simple distinction between the two is if you’re flying recreationally, you’re just flying for the fun of it, and that’s it,” said Cloutier, who also teaches a four-day class on drones at the University of New Hampshire. “If you’re not flying strictly for the fun of it, you are considered a commercial operator.”

All recreational drones must be registered, and they can only fly under 400 feet in airspace away from airports, large crowds of people and emergencies, such as car accidents and firefighting efforts.

Congress also passed legislation this year that will soon require recreational flyers to take an online class, according to the Federal Aviation Administration’s drone website.

Meanwhile, commercial drone operators undergo more stringent regulations and have to pass a 60-question test to obtain certification, Cloutier said.

“It’s kind of like a pilot test without a lot of the specific manned pilot stuff,” he said, adding drone operators must still understand air space, safety and weather in a similar manner.

Cloutier said he takes time in classes to discuss ethics and privacy issues, devoting almost a full day to the topic.

“It’s a small community, and if they do something that’s not right, it’s going to impact the rest of the community,” he said. “We need to make sure people understand that the good (of drones) outweighs the bad.”

Skip Christenbury, who runs the drone program at the Strafford County Sheriff’s Office in Dover, N.H., agreed that while the privacy laws aren’t perfect, they can protect the public from drones.

“What we tell people is that if they have a concern with a drone, contact local police,” said Christenbury, who warned that people shouldn’t try to shoot the devices down.

The FAA also is available to help local police, and officials at the Boston-based field office are very responsive to local queries, Christenbury said.

He added that concerns about government use of drones are also valid.

The Strafford County Sheriff’s Office purchased its first drone in 2018 to help find people who wander off from the county nursing home, he said. They’ve since been used to look for missing people and escaped criminals, even assisting bloodhound units during nighttime operations.

But to safeguard privacy, the sheriff’s office requires all of its flights — even tests — to be approved by the county attorney.

They also keep logs of each flight, who was operating the drone and where it went, Christenbury said.

Harper, the Sutton resident, acknowledges the good that drones could do. Technology is only going to get better, he said, adding that should be reason to enact new laws.

In the meantime, Harper checks the windows of his home several times at night and has gotten into the habit of closing blinds and shades.

“It’s extremely unnerving because you don’t know when this character’s going to show up,” he said. “We’ve changed our habits. We no longer feel comfortable.”

Tim Camerato can be reached at tcamerato@vnews.com or 603-727-3223.




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