Domestic Drone Regulation for Safety and Privacy

Today’s (Sunday, Sep 8, 2013) New York Times has a story by Anne Eisenberg, “Preflight Turbulence for Commercial Drones.”  The article combines two crucial topics in connection with drones (remotely piloted aerial vehicles, or unmanned aerial vehicles, UAVs, but my advice to the industry and USAF is that the People Have Spoken, and it’s “drones”): safety and privacy.  The article is interesting chiefly because it focuses on commercial drones (rather than either military drones, law enforcement drones, or hobbyist drones, as so many articles do).  It talks about the likely path of commercial uses of drones:

Companies in the United States are preparing for drones, too. Customers can buy an entire system, consisting of the aerial vehicle, software and a control station, for less than $100,000, with smaller systems going for $15,000 to $50,000, said Jeff Lovin, a senior vice president at Woolpert, a mapping and design firm in Dayton, Ohio. Woolpert owns six traditional, piloted twin-engine aircraft to collect data for aerial mapping; these typically cost $2 million to $3 million to buy, and several thousand dollars an hour to operate, he said.

Gavin Schrock, a professional surveyor and associate editor of Professional Surveyor magazine, says he thinks that surveyors will be among the first to add drones to their tool kits. Aerial systems are perfect for surveying locations like open-pit mines, he said. A small drone can fly over a pit, shuttling back and forth in overlapping rows, taking pictures that can be stitched together and converted into a three-dimensional model that is accurate to within a few inches. Such a system is safer than having a surveyor walk around the pit with traditional tools. “I hate doing that,” Mr. Schrock said. “It’s dangerous.”

For many commercial applications, in other words, the choice will become one between a small manned plane or a relatively small, low-flying drone that can be used for mapping and surveying.  There are commercial functions for which the choice between a manned aircraft and a UAV might be a close decision economically for a company – but these kinds of mapping operations are not likely to be even close.  That will be true almost immediately of many functions in agriculture – to judge by Japan’s experience using drones in agriculture for years, for example – and many other industries in which operations will take place over largely unpopulated areas.

However, as the article discusses, the same technologies which make drones so useful for mapping and surveying make them useful for surveillance of people, whether by government agencies or, for that matter, private parties.  These are very real concerns, and government at all levels needs to think about what the correct approach to privacy and surveillance should be – where, it’s important to note, the erosion of privacy arises not simply from drones, but from drones combined with increasingly powerful aerial sensors, computing power to be able to undertake real-time (or increasingly so) identification, and the ability to be able to upload all that to the internet.  It’s not necessary to get into discussions of drones, weapons, and law enforcement to fathom major issues.  On the other hand, most people would not want to throw the baby out with the bathwater; the legal system has faced privacy issues in connection with new technologies before and has managed to draw reasonable lines.

One area that in my experience is receiving less attention than it ought is surveillance by private parties.  Most of the attention, including in this NYT article, goes to uses by government.  But I think more thought needs to be given to whether the existing legal rules on how private parties can engage in surveillance in what is today deemed “public” space adequately address what we thought constituted expectations of privacy under a much more primitive technological regime.  The rules regarding overflight and photography, for example.  Yes, I think it’s important for businesses to be able engage in aerial photography and mapping of private property, such as real estate businesses.  No, I don’t think it should be okay for a private person to be able, for example, to park some future (and much more advanced, in terms of battery and flight time) drone over someone’s house and yard, and broadcast to the internet 24/7, or to be able to follow a person around when they are in public 24/7 and upload to the internet continuously.

My guess is that the initial answers to what is permissible for private parties, whether surveilling private property or a person in public, will come from nuisance law.  Some part of it might come from anti-stalking laws, but unless the behavior is connected to the kinds of issues for which stalking laws were devised, it seems to me a bad regulatory path, because it engages too much legal firepower, so to speak, on something that in the baseline case ought to be considered something much more like nuisance.  This will require developing some new nuisance doctrines, or new statutory recognitions of forms of nuisance – and that will raise, in public especially, free expression rights and, in conceptual terms, the risk that the “public space” becomes “private” to each person entering it, which for many social reasons is a bad idea.

The other issue is safety.  In commercial applications, I assume the trend will be toward insurance as one would do with manned aircraft, operating over inhabited areas, for example.  With respect to air traffic safety and the management of the existing airspace, the FAA will likely look to extend and adapt its existing regulatory framework.  But as Benjamin Wittes has pointed out recently at Lawfare, leaving aside commercial operators and uses, there are concerns over ground safety when drones are operated by hobbyists.  For example, though of course extremely (vanishingly) rare, a teenager in Brooklyn was killed a few days when the hobby helicopter drone he was operating crashed on top of him, and the blades opened blood vessels in his neck.  (Note: according to press accounts, he was not flying the popular Parrot toy drone helicopter, but most likely a much larger and more powerful hobbyist aircraft, reportedly with a bladespan of 4.5 feet.)

Ben points as well to a Richmond TV station’s video of a toy drone (not the station’s) crashing and falling into the stands at a local sporting event. This is likely to become a lot more common, and regulation and liability rules for people underneath a drone, whether commercial or hobbyist, will have to take account of the new technology.

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