Trespass, Privacy, and Drones in Idaho: No Snooping Allowed!
(published in the Idaho State Bar Advocate Magazine, Mar/Apr 2015)
(by) Arthur B. Macomber

In Idaho, regardless of the lawful geographic position of the drone operator, Idaho law prohibits the flying of drones1 into properly posted private property airspace without permission of the title owner or possessor of that airspace.2

In Idaho, real property includes land3 and land includes airspace.4 Rights in and limitations on the use of airspace in Idaho are governed by state statute and federal law, the latter through the commerce clause of the U.S. Constitution.5 However, in Idaho Code “Flight in aircraft over the lands and waters of this state is lawful. . . ,” which implies a person inside the aircraft, not flight of a remote-piloted drone.6

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Civil trespass and drones

Since property in Idaho includes the air space above it, a person flying a drone into airspace owned by another without permission is trespassing, subject to the right of flight. If a person without permission enters the real property of another with notice that such entry is a trespass, “and nonetheless continues his trespass, the landowner plaintiff may be entitled to punitive damages.”31 Therefore, while the definitions of “permission” and “entry” will refine the issue, flying a drone into private property airspace should initially be analyzed as a common-law tort.

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Privacy and drones

Certain uses of unmanned aircraft in Idaho are prohibited without “written consent,” even if entry into the airspace owned by another does not occur.39 These activities, “absent a warrant,” (except for emergency responses for health and safety), include surveillance of persons or property, gathering evidence or information about a person or property, “photographically or electronically record[ing] specific [ ] persons or specific [ ] private property is a dwelling, “farm, dairy, ranch or other architectural industry.”40

Thus, even if an unmanned aircraft system operator in Idaho stands on a public street where she is legally allowed to be, she cannot fly her unmanned aircraft in the air above that public street to watch specific persons or specific private property that may abut that public street without written consent of the persons being watched or the property owner.41 For this reason, the statute as written is overbroad because it prohibits photographic aerial capture of then-presently occurring “constitutionally-protected speech activity, such as protests, speeches, or rallies.”42

- See more at: http://macomberlaw.com/advocate-article-trespass-privacy-and-drones-in-idaho-no-snooping-allowed/#sthash.OtGRP4K3.dpuf