Should states determine if drones can record your conversations?

A drone camera hovers near a giant yellow rubber duck created by Dutch artist Florentijn Hofman. (AP Photo/Ng Han Guan)Privacy and free speech have a complicated relationship. Privacy can be necessary for speech, or in direct tension with it. Tensions arise, for example, when one person records something another person wants to keep private.

Drones, which people already use as platforms for recording technologies, embody this tension between privacy and free speech. Drones can be used to stalk people, or to record matters of public interest from new vantage points. We should allow states to experiment with a variety of drone privacy laws, in order to allow courts to experiment with striking the right balance between privacy and speech.

Laws regulating the use of drones as platforms for recording technologies—as distinct from laws requiring the safe operation of drones—may encounter First Amendment challenges. Courts have recently found that the First Amendment protects a “right to record.”

Several states have wiretap laws that require a person to get permission from all parties in a conversation before recording it. These wiretap laws have been used by police to arrest people who record police activity in public using cellular phones. But several courts have found that such recordings are protected by the First Amendment, recognizing a First Amendment “right to record.”

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