Tony Stark in Superior Iron Man is being very creepy with drones flying over San Francisco for “security.” The City by the Bay has become an Orwellian parable, thanks to the great story by Tom Taylor. While crime is low to non-existent, Stark states that because of the drone surveillance, people of San Francisco were “thinking up really creative ways not to be naked.”
San Francisco has a population of over 835,000 people. Tony Stark could be sued in the largest invasion of privacy case of all time.
Invasion of Privacy in California
California might be short on water, but we are rich in privacy laws. The California Constitution states that, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal Const, Art. I § 1.
The state of California has enacted laws that would give anyone who is recorded by Stark’s drones a cause of action against him for invasion of privacy. Tony Stark has arguably subjected himself to civil liability suit based on the following:
A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.
Cal Civ Code § 1708.8(b), emphasis added.
What does this mean? A Stark Drone hovering outside your bedroom window recording your every moment would be an invasion of privacy.
Damages could be up to three times the amount of any general and special damages that are proximately caused by the violation of this section. Cal Civ Code § 1708.8(d). Moreover, punitive damages could be an option (and given the fact surveillance is constant AND naked photos of everyone, punitive damages should be a given). Id. Additionally, there is a civil fine of at least $5,000, but not more than $50,000, for each plaintiff. Furthermore, if Tony Stark commercialized the record images with a voyeur website, he would be subject to disgorgement of any profits. Id.
Tony Stark might be rich, but if he was fined $50,000 for each of the 835,000 people in San Francisco, Stark would likely be bankrupted.
Stark might argue the Terms of Service for his App gave him the right to record people. This likely would fail, given the severity of the intrusion. Moreover, no Judge will think, “Sure, you can click away all person freedom in an App Terms of Service Agreement.”
There is also the issue of recording naked children. For Tony Stark to be guilty of child pornography, the images would need to be of children engaged or simulating sexual conduct. Cal Pen Code § 311.11. Law enforcement can add that issue to the search warrant.
Tony Stark’s attorneys should strongly advise against the use of drones to record people in San Francisco. A very good [fictional] attorney could prove each element of the jury instructions for invasion of privacy:
That the people had a reasonable expectation of privacy in their homes;
That Tony Stark intentionally intruded into their homes to remotely record them with drones and technology in violation of Cal Civ Code § 1708.8(b);
That Stark conduct of recording each plaintiff at home is highly offensive to a reasonable person;
That each plaintiff was harmed, such as trying to find ways not to be seen naked; and
That Stark’s Drones were a substantial factor in causing the harm.
Tony Stark’s drones are creating significant civil and potentially criminal liability for the rogue super-hero. Stark’s attorneys should strongly recommend he cease all drone operations. Moreover, destroy all hard drives containing recorded images before Stark can reasonably anticipate litigation and be subject to the duty to preserve.
