A Florida aviation attorney and author of a book on unmanned aerial systems (UAS) law believes that addressing privacy issues related to drones won’t be resolved quickly or easily.
“The big issue here is not privacy, but who can regulate privacy over private drones,” said Jonathan Rupprecht, who wrote the e-book “Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them.” He’s also a commercial pilot and flight instructor in West Palm Beach, Florida, specializing in UAS law.
“The FAA has not been charged with the task of dealing with privacy,” Rupprecht said. “They are in charge of maintaining the safety of the national airspace system.”
The topic of privacy was discussed at length Wednesday during a hearing in Washington, D.C., conducted by the U.S. House Committee on Oversight and Government Reform. The hearing’s purpose was to discuss the challenges and economic impact of regulating UAS for personal and commercial uses.
Harley Geiger, advocacy director and senior council with the Center for Democracy and Technology, testified on privacy concerns, saying government and the UAS industry need to address civil liberties issues. His organization advocates that Congress pass federal legislation covering “privacy and transparency standards for UAS” and that the UAS industry “adopt a strong and accountable code of conduct.”
But even if that happens, Rupprecht said such measures won’t resolve UAS-related privacy issues because the legal lines aren’t clear.
“Who creates privacy laws for the use of drones in navigable airspace?” he asks. “The U.S. Constitution under Article 1 gives Congress powers to regulate certain things, but privacy is not listed.”
Rupprecht said that because Congress has the authority to regulate commerce, it could claim a nexus between air commerce and privacy, but that might be too much of a stretch.
“I don’t think they are related as air commerce is not affected by the privacy issues of individuals on the ground,” he explained.
Rupprecht said that because the federal government doesn’t have the authority to regulate privacy, the issue could be handled by state laws. However, that also creates legal concerns.
“How do the states regulate drones regarding privacy when the drones are operating in a federal area?” he asks. “Can they regulate only below navigable airspace?”
While calling for the UAS industry to create a code of conduct, Geiger at the same time criticized the code adopted by the Association for Unmanned Vehicle Systems International (AUVSI), remarking, “That does not cut it.”
Rupprecht said that Congress has no role in creating such a code, and even if the UAS industry develops and adopts one, “Who enforces the code of conduct if there is a violation?”
During the Congressional hearing, Geiger also said that except in special circumstances, law enforcement agencies should be required to obtain a warrant to conduct surveillance operations with UAS.
Above navigable airspace, Rupprecht said warrants should not be necessary because “helicopters can travel in this area just like the patrol cars can drive down the road.”
However, he said the situation could be different in the airspace below 500 feet where UAS can easily operate.
“I think the states could require warrants to obtain evidence for criminal actions,” Rupprecht said. “If the state police cannot admit that evidence for a prosecution, then the prosecutor will have to find other evidence to admit at trial.”
Source: UAS Magazine
The issue of authority evaporates when one realizes that privacy issue have to do with human behavior, expectations and what is done with collected images or other information. The expectation of privacy has been well described by statutory and case law, all the way to the Supreme Court with regard to images collected by airborne governmental elements. The one significant gap may be in the definition of trespassing, which at this time seems to be limited to intrusion by a person onto property and therefore runs into problems when the intrusion is above the property and never touches it. What definition I’ve seen (and I’m not a lawyer, have not done an exhaustive search, but am very interested in this) gets much of its detail from dealing with paparazzi seeking photos of celebrities. So long as they don’t access the celebrity’s property, they have been generally immune from prosecution. Similarly with stalkers or abusive spouses–the issuance of a restraining order, and the consequences of violating it center around intrusion on a defined “safe space” around the victim.
What is done with images and other information collected by the drone–which is just a tool, as is a camera on your smartphone–is the action of a private (non-governmental) human, and the issues here will likely fall into areas like bullying, harassment, stalking, or even hate crimes. In the end, it seems to that it is about the behavior of the human operator of the drone, not the mechanical device used by that human. Just as a car driven into a crowd with intent to harm results in action against the human alone, with no new rules about cars, so actions by the human operator of a drone should result in consequences for the human, not restrictions on the category of tool called a drone.