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.

The initial public outcry about the bill came from several consumer, technology, and civil rights groups with concerns being raised as to the use of high-resolution and infrared cameras, automated license plate scanners, and the ability to track specific targets by drones.  In response, according to an FAA notice released two weeks ago, “[t]est site operators will be required to establish a privacy policy that is public, and builds confidence and trust.”  It is feared that this bill opens the door for government and private entities to ignore privacy rights, resulting in a slippery slope effect on the deterioration of privacy for US citizens.  Proponents of the bill state that the fears are overblown and result from a lack of understanding regarding the technology employed by drones.  As Ben Geilom of the Association for Unmanned Vehicle Systems International stated “the cameras and sensors that are on the unmanned system are not new,” and have been used by law enforcement for years.

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.

John Craven

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3 Responses to Preserving Privacy with Domestic Drones

  1. Francie Kammeraad says:

    Mike, it seems you were right! The debate has centered recently on drones used by the military. Specifically, Senator Rand Paul, in his recent filibuster, demanded that the White House clearly state whether drones could be used to target and kill US citizens who live within the United States. He claimed that use of such drones would violate the due process clause of the Constitution. According to a letter from Eric Holder, the answer to Rand’s question was “no.” Bu it will be interesting to see whether Congress and the White House continue to “Stand with Rand” on this issue, and whether the public will soon turn its attention to civilian drones and privacy concerns implicated by the Constitution.

  2. Gwynne M. Nicholaides says:

    This further intrusion into the private lives of American Citizens must be taken seriously and watched carefully. Already, we have had serious erosion of our civil rights, both by corporate and governmental invasion of telephones and email.The truth is that American citizens are losing privacy and really have no actual influence on those who we elected to govern us because politicians are bought and sold by corporations. The military/industrial establishment, against which Dwight Eisenhower warned us, has become a true racket, and our young patriots are sent to the slaughter by the old men who make war. Incredibily, seriously wounded veterans are not given sufficent treatment for either horrible injuries to their bodies or to their minds. We allow the military and the government to replace the cold, hard facts with euphimisms, thinking we can’t see through them.
    And the bankers and financial institutions got the money back and bonuses paid while letting this second Great Depression disposess people of their houses and their jobs, which are off-shored. Now the playboy politicos waste all our time playing around with minor legislation, rather than getting down to collegiate work across party lines.
    Make the politicians’ insurance be medicare: for decreases in spending for proper health and care for the young, the poor, and the elderly, apply similar cuts to the income of the politicians. Let them get Social Security, not these insane benefits, when they retire. Cut out free parking, haircuts, and medical care based on what they for what they vote for us. To quote an old saying, it looks as if we are going to Hell in a handbasket!

  3. Michael Dearington says:

    Nice post John! Putting aside one’s thoughts on domestic drones and concomitant privacy concerns, I think the debate will, at least in the near term, be colored by the public’s perception of drones as used by the military.

    Not only will it be difficult for the courts to reconcile use of domestic drones in certain search contexts, but it will be difficult for law enforcement to use drones from a political standpoint because of the way people feel about drones, especially the notion of the government “trolling the skies.”

    It will be interesting to see how people’s thoughts about drones shift in the coming years, especially if private companies use drones for very casual purposes, like filming for broadcasts, and the hostility-prone connotations fade.