UAV Law – Drones & Privacy

Drones & Privacy

Drones are capable of reaching great heights of altitude and in many cases they are beyond the range of sight for most people. In addition, the majority of publicly available drones are designed to be very small and maneuverable. Drone surveillance can occur without the knowledge of the individual being monitored. Aeriel surveillance capabilities of drones within the United States raises significant privacy issues because of the detailed information on individuals that these unmanned aerial vehicles are easily capable of gathering.

More than 100 groups and experts joined together to petition the Federal Aviation Administration (FAA) to conduct a public rule-making on the privacy impact of increased drone deployment in the United States. The FAA acknowledged the importance of privacy and responded in November 2014 that it would undertake the rulemaking. But in early 2015, the agency reversed course and announced it would not yet establish privacy safeguards for commercial drones. Here we are in 2018 and the regulatory landscape continues to rapidly change.

Drones come prepackaged with a great variety of surveillance technology from Gigapixel cameras to infrared sensors. As such, drones are capable of capturing extremely detailed information via photography and video data on anything from vehicles, buildings, infrastructure, agriculture, and people. Facial recognition software, made possible by the use of advanced computer algorithms known as “neural nets”, will soon be able to execute on-board drones while in flight. This can lead to the possibility of remotely identifying people in parks, streets, and other such areas.

We have paparazzi using drones to track celebrities, private investigators using drones to track the targets of their investigations, and soon-to-be divorcees tracking their soon-to-be ex-spouses. Google has used drones to enhance its Goolge Street View capabilities. Government surveillance might be one of the biggest threats to all concerned citizens privacy rights as set forth by the Fourth Amendment. But what exactly are those “rights” which we think we have? The Fourth Amendment originally enforced the notion that “each man’s home is his castle”, secure from unreasonable searches and seizures of property by the government. It protects against arbitrary arrests, and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance, as well as being central to many other criminal law topics and to privacy law.

Reasonable Expectation of Privacy. In Katz v. United States, Justice Potter Stewart wrote in the majority opinion that “a search” occurs for purposes of the Fourth Amendment when the government violates a person’s “reasonable expectation of privacy.” The decision in Katz was later developed into what is now a commonly used two-prong test, for determining whether the Fourth Amendment is applicable in a given circumstance: i) has a person “exhibited an actual (subjective) expectation of privacy”; and ii) is society prepared to recognize that this expectation is (objectively) reasonable.

Long story short, the US Supreme Court has held that individuals do not generally have Fourth Amendment rights with respect to aerial surveillance because of the ability that anyone might have to observe what could be viewed from the air. Individuals do NOT have a “reasonable expectation of privacy” when viewed from the air in public places.

Although Drones and Privacy is certainly a hotspot legal issue, the FAA continues to stall addressing privacy concerns with its piecemeal approach to developing regulations for commercial drone use. In an ongoing bid to force the FAA’s hand in rulemaking on drone-related privacy and civil liberty concerns, the Electronic Privacy Information Center (EPIC) filed a petition against the FAA petitioning the court to, among other things, hold unlawful the FAA’s withholding of propsed drone privacy rules, which Congress required the agency to issue under the FAA Modernization and Reform Act of 2012. You can read the EPIC petition here: Petition: EPIC v. FAA.

This document/post/article is not to be considered as legal advice. Content and information contained herein is subject to changes, modifications, and may contain inaccuracies or out-of-date information. As with any legal matter or other matters of importance, consultation with an attorney or professional is the best course of action.

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