At present, unmanned aerial vehicles — “drones” in popular parlance — are used for military surveillance and strikes, civilian environmental and wildlife monitoring, and scientific research purposes. Private citizens use remotely operated toy airplanes and helicopters for entertainment, and sometimes to spy on their neighbors. (“So This Is How It Begins: Guy Refuses to Stop Drone-Spying on Seattle Woman” by Rebecca J. Rosen, The Atlantic, May 13, 2013)
“What we don’t have now is tabloid paparazzi drones chasing celebrities, pizza delivery drones enticing packs of dogs Pied Piper-like down the street, or advertising drones cluttering the night sky. This could change after September 2015, the deadline is given in the 2012 FAA (Federal Aviation Administration) Modernization and Reform Act for the full integration of unmanned aircraft into the National Airspace System — the common area that begins a few hundred feet above your backyard (the FAA has several definitions of just where this begins). The new FAA rules will apply only to drones flying below 400 feet (122 meters) and weighing less than 55 pounds (25 kg). (“Uncertainties remain as FAA integrates drones into American skies” by Josh Solomon, McClatchy, April 29, 2013)
Current privacy and public safety laws cover much of the mischief that weaponized or camera-bearing drones could do. However, any new technology enables new dangerous and annoying misuses that aren’t covered in existing laws, simply because they weren’t possible before.
Rep. Paul Gosar (R-AZ) summarized some of the legislative and policy challenges facing expanded drone use at “The Drone Next Door“, a May 7 seminar in Washington, DC, put on by the Future Tense consortium: The New America Foundation, Arizona State University, and Slate (Twitter hashtag #FTdrones). Gosar stated that he supports Second Amendment (right to bear arms) and individual privacy rights, but that the implications of new drone capabilities must be “fleshed out”.
Do we even have a Constitutional framework for something like this? “I think so,” he said. Legislators must “break the Constitution into simple parts, and address this as personal responsibility.” But do 2nd Amendment rights apply to remotely operated vehicles? “We’re having that conversation. It needs to be open to the public and make sense to the public,” Gosar said.
Still to be determined is who regulates this aspect of drones. Is it the FAA (whose mandate includes public safety, but not privacy rights)? Is this the domain of local police departments? Is it legal for me to shoot down my neighbor’s drone if it flies over my property? The consensus of several panel speakers at the Future Tense event was that privacy issues will probably be hashed out in the civil and criminal courts over a period of years as specific cases arise.
Determining the degree of human oversight is a safety issue, but it’s also a public support issue. People are naturally uncomfortable with a machine making the decision whether to pull the trigger on a weapon (autonomous lethality). But more benign applications must win the public’s trust as well before they can be adopted widely. Self-parking cars are on the market today, and Google tested a driverless car (with a human in the driver’s seat just in case) in Manhattan on April 2 of this year.
One driverless car running over a three-year-old could “shut down the industry” according to Missy Cummings, MIT associate professor of aeronautics and astronautics, and a former Navy fighter pilot. “Google cars slipped in while we were stressing over UAVs [unmanned aerial vehicles], but they are more likely to hurt you,” she said. Personal air vehicles might be on the horizon, and this will bring up further safety issues.
Michael Toscano, president, and CEO of the Association for Unmanned Vehicle Systems International disagreed with this assessment, stating that government and industry leaders must emphasize how autonomous vehicles bring down the rate of auto accidents overall. Automated navigation takes human reaction time, emotional states, boredom, and distraction out of the equation. This will be especially important in dealing with cognitive decline as our population ages. He also noted that if your car drives itself, it doesn’t matter if its passengers can’t resist the urge to send text messages from the road. Safety and accountability are paramount when determining the necessary degree of human oversight, Toscano said.
At present, private citizens in the U.S. have more leeway to spy on each other than does the government because of regulatory restrictions, according to Daniel Rothenberg, a law professor at Arizona State University.
“Could the government do an end-run around these restrictions by encouraging citizens to spy on each other?” asked ACLU staff attorney Catherine Crump. In the aftermath of the Boston Marathon bombing, local authorities asked bystanders to provide cell phone photos to help identify suspects. How far could law enforcement agencies take their requests for citizens to monitor and report each other? Lawsuits will drive the development of legal guidelines and restrictions on citizen surveillance, Crump said.
Where drone surveillance differs from past incursions on personal privacy, Crump continued, is that the public is finding out about drones as the technology is rolling out. In contrast, the general public found out about the extent of personal data collection done by Google, Facebook, and other online platforms only after their systems were fully in place and had been operational for some time.
Crump cites an “opportunity to get in on the ground level” with privacy protection regulations for drones. In the U.S., it’s typical for legislation to be implemented sector by sector, enabling the development of a drone-specific body of laws. This requires that law enforcement agencies have a specific purpose in cracking down on specific activities and that they be able to demonstrate that such restrictions are beneficial to society overall.
Drawing the Lines
Unmanned aerial vehicles in the domestic airspace should be required to broadcast an ID signal and conform to traffic control and limitations on functionality, noted Matthew Waite, founder of the Drone Journalism Lab at the University of Nebraska-Lincoln. Fellow panelist Joseph Hall, of the Center for Democracy and Technology, cited a need to strike a balance between a chaotic patchwork of customized state and local regulations and an unworkable one-size-fits-all regime. Captain Don Roby of the Baltimore County Police Department urged engagement with communities to find out what citizens are willing to accept.
Roby predicted that as more and more businesses find applications for unmanned vehicles, the price will start to come down, spurring even wider adoption. “It’s like the PC revolution,” he said. Hall cautioned that not everyone will have the skills to pilot the larger drones, which he referred to as “flying lawnmowers” because of their helicopter-like rotors.
How will regulators know where to draw the lines? Waite suggested that regulations should be relaxed somewhat before the full integration of commercial drones, in order to experiment and see how things work out. Hall proposed an open-source community of hobbyists posting their experiences and test results.
Overall, the panelists agreed that current laws cover many of the issues surrounding privacy, property rights, probable cause for persistent surveillance, and how long data may be retained. Crump and Rothenberg noted that recent court cases have tackled the limits of remote surveillance using, for example, GPS units surreptitiously affixed to a suspect’s car or heat sensors monitoring activity inside a suspect’s home. The “war on terrorism” has prompted extensive debate over the distinction between civilian law and the law of war. Drones could potentially collect information on “patterns of life” tracking people’s habits and routines 24 x 7, but the concerns this introduces has less to do with the actual drone technology than with the privacy issues arising from new surveillance capabilities.
“Technology is an equal-opportunity enabler,” write Eric Schmidt and Jared Cohen in their book New Digital Age. It empowers diplomats and terrorists alike. (“Turn on, log in, opt out?” by Lauren Kirchner, Columbia Journalism Review, May 1, 2013) The drone plane providing the dramatic aerial shots of your kid’s wedding could come back and peek through your bathroom window tomorrow. The main issue isn’t the technology itself, but how we choose to use it.