John Villasenor on Domestic Drones, Airspace Safety, and Privacy Protection

John Villasenor – a professor of engineering at UCLA and a Brookings Institution senior fellow – has a new article at Slate on the domestic use of drones.  (The article part of a conference held yesterday at the New America Foundation in conjunction with Arizona State University on domestic drone policy, with many fine participants; well worth checking out.)  The article’s fundamental point is that many features that will likely figure in FAA regulations intended to ensure safety in domestic airspace as drones are allowed to enter it will also be supportive of privacy concerns.  By no means does this make the problems of privacy go away, but it’s important to be aware of the ways in which safety regulation will affect and, in important ways, reinforce privacy.

For most of the 20th century, obtaining overhead images was difficult and expensive. Now, thanks to advances in unmanned aircraft systems—people in the aviation field tend to dislike the word drone—it has become easy and inexpensive, raising new and important privacy issues[PDF]. These issues need to be addressed primarily through legal frameworks: The Constitution, existing and new federal and state laws, and legal precedents regarding invasion of privacy will all play key roles in determining the bounds of acceptable information-gathering from UAS. But safety regulations will have an important and less widely appreciated secondary privacy role.

Why? Because safety regulations, which aim to ensure that aircraft do not pose a danger in the airspace or to people and property on the ground, obviously place restrictions on where and in what manner aircraft can be operated. Those same restrictions can also affect privacy from overhead observations from both government and nongovernment UAS. FAA regulations make it unlawful, for example, to operate any aircraft (whether manned or unmanned) “in a careless or reckless manner so as to endanger the life or property of another.” Aircraft must also be operated at a sufficiently high altitude to allow “an emergency landing without undue hazard to persons or property on the surface” in the event of an engine failure. Flying a UAS around someone else’s backyard can be a bad idea for lots of reasons, including the possibility of violating these rules.

Privacy concerns from domestic drones arise along two distinct axes. First, the question of who does the surveillance: surveillance by government or surveillance by private parties.  Second, the question of where is the surveillance taking place: in public space or private space.  The law has worked out a rough body of answers to the four privacy boxes that these create; in addition, there are countervailing legal and policy concerns that also divide along public and private lines: the legitimate use of surveillance by government for law enforcement, and the legitimate expressive rights of private citizens to photograph, video, or otherwise exercise free expression rights.  And there are distinctions for each of those, of course, depending on whether one refers to public space or private space.  All of this links into other technologies of surveillance besides drones – internet monitoring, etc.  There is a large body of scholarly, policy, and advocacy work on these areas; look particularly at Shane Harris’ fine book, The Watchers: the Rise of America’s Surveillance State, at University of Washington law professor Ryan Calo’s many articles, and at the advocacy work of the ACLU’s Catherine Crump, just to take a few whose work I follow closely.

The FAA, Villasenor observes as the starting point, has been tasked by Congress with figuring out how to introduce UAVs (and though I agree this is the vastly more accurate term, it’s time to concede that “UAV” has lost out to “drone”) into the domestic airspace for commercial uses.  The primary concern of that regulatory effort is, and has to be, airspace safety.  The first order of business has to be to ensure that a drone does not collide with a manned craft.  But drone aircraft also raise the many privacy concerns that have been much discussed, and the FAA has also been tasked by Congress with addressing these concerns.  It’s not clear that the FAA is the best agency to do that – it has not had a mandate to deal with privacy before – save for the fact that privacy regulation has to be embedded with the rest of the regulations governing drone flight.

It is therefore useful to see that privacy concerns are often supported by and supportive of the first-order safety concerns in regulation of airspace.  This does not solve all of the privacy concerns by any stretch, Villasenor is careful to note, but it helps to know that these two policy mandates are not in fundamental competition with each other.

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