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The Federal Aviation Administration currently approves the use of unmanned aerial vehicles (UAVs), or drones, in U.S. airspace on a case-by-case basis. The FAA Modernization and Reform Act, which was signed into law last year, requires the FAA to create six test ranges in the United States in order to work toward integrating unmanned aircraft systems (UAS) into the national airspace system (NAS). However, privacy concerns regarding the collection and use of data has resulted in significant delays to beginning the process, which the FAA recently announced would be addressed “through engagement and collaboration with the public.”
Civilian drones are much less expensive and more readily available than manned aircraft or satellites and present a better option for capturing aerial view images for companies such as Google. Additionally, the use of civilian drones could prove to be an invaluable resource for search-and-rescue operations following natural disasters. And the police and border patrol have been strong advocates of the potential benefits to public safety. Despite their potential cost savings, however, there are significant safety concerns. First, the technological feasibility of integrating the UAS into the NAS is shaky, as it is an undertaking of “significant breadth and complexity.” The sense-and-avoid technology, which would allow the drones to automatically avoid collision with manned aircraft is not fully developed and the strategy for coordinating the maintenance of the system is in its early stages. The potential for interference with a drone’s GPS signals or its transmissions is also a concern, as inexpensive equipment has proven capable of “spoofing” the GPS signals used by civilian drones by jamming its remote-control communications.
In 1986, the Supreme Court ruled that the use of a single-engine airplane by law enforcement to spot marijuana fields on an individual’s property was not a violation of the Fourth Amendment. Read broadly this case suggests that the imaging capabilities of the drones will not present privacy concerns serious enough to reach a Constitutional violation. However, in the 2001 case of Kyllo v. United States the Court ruled that a thermal imaging device to monitor heat radiation from inside someone’s home was a violation of the Fourth Amendment. In the Court’s opinion it stated that the government’s use of a device “not in general public use,” which made information available that could not be known without physical intrusion constituted a “search.” Therefore, it will be interesting to see how the breadth of the bill (i.e., allowing for the use of drones by private individuals–”public use”) affects the constitutionality of the government’s use of drones.
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