Readings: John Villasenor on "Unmanned Aircraft Systems and Privacy"

By Benjamin Wittes
Saturday, April 13, 2013, 1:00 PM

John Villasenor has new law review article out taking a systematic look at drones and privacy. Entitled "Observations from Above: Unmanned Aircraft Systems and Privacy" and published in the Harvard Journal of Law and Public Policy, it contains a substantial historical overview, as well as discussions of the privacy implications of both government and non-governmental unmanned aerial systems. I have not read this yet, but---despite its being a law review article---I plan to. I am unaware of anything as substantial as this written on this subject, and the subject is certainly one that has exploded into the public consciousness.

The introduction reads:

Military aviation experts and model airplane hobbyists have known for decades that an airplane can be flown without a human in the cockpit. Until very recently, however, for most people the very concept of an aircraft was inextricably tied to that of the pilot it was presumed to carry. In the long run, that may turn out to be a historical aberration.

“Drones”—more accurately, unmanned aircraft—will dominate the future of aviation as thoroughly as manned aircraft have dominated its past. In the military the transition is well under way. In 2012, the United States military had close to 6,300 unmanned aircraft systems (UAS)[1] and is training hundreds of new pilots each year to fly them.[2] Civilian UAS use in the United States is also set to grow rapidly in the wake of a law enacted in February 2012 providing for the integration of unmanned aircraft into the national airspace over the next several years.[3]

UAS can be employed in an endless variety of civilian applications, the overwhelming majority of them beneficial. They can be used, for example, to help rescuers identify people in need of assistance following a natural disaster, or to provide vital overhead imagery to police officers attempting to defuse a hostage standoff. In the commercial world, UAS will be increasingly employed for tasks as diverse as surveying, crop spraying, and traffic congestion monitoring. Scientific applications include air quality assessment, wildlife tracking, and measuring the internal dynamics of violent storms. UAS will also generate a number of economic benefits, both by creating jobs that involve the design and production of UAS and by spurring advances in robotics that will apply well beyond aviation, in fields ranging from manufacturing to surgery.

However, like any technology, UAS can be misused. The most common concern regarding domestic UAS relates to their potential impact on privacy. This is a legitimate concern. Existing laws and jurisprudence provide an important foundation, but they also leave many questions unanswered. And although in some respects UAS simply represent one more manifestation of the always complex intersection between technology and privacy, they are also unique in making it possible, for the first time ever, to easily and inexpensively obtain observations from above.

As Justice Samuel Alito wrote in a concurrence in United States v. Jones, the January 2012 Supreme Court ruling that addressed the constitutionality of affixing a GPS tracking device to a vehicle without a valid warrant, “[i]n the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical.”[4] Although Justice Alito’s statement was directed toward GPS tracking, it has direct relevance to UAS. In comparison with manned aircraft, UAS can be very inexpensive to procure and operate. As the practical barriers to obtaining aerial imagery fall away, the resulting privacy issues take on heightened importance.

This Article considers the constitutional, statutory, and common law frameworks that will inform privacy rights with respect to observations from unmanned aircraft.[5] The potential privacy challenges raised by unmanned aircraft are direct consequences of their capabilities and of the rules governing the manner in which they can be flown. Accordingly, Part I provides the historical context for UAS technology and describes the range of platforms available today. Part II addresses the current regulatory environment in the United States, with particular attention to those provisions of the FAA Modernization and Reform Act of 2012 (FMRA) that relate to UAS.

Part III discusses government operation of unmanned aircraft in light of the Supreme Court’s Fourth Amendment jurisprudence. Although the Supreme Court has never specifically ruled on the question of UAS privacy, it has examined the Fourth Amendment implications of aerial surveillance on several occasions. Part III examines those cases in some detail, as well as Jones[6] and Kyllo v. United States,[7] and the interpretations they suggest with respect to the constitutionality of UAS observations.

Part IV addresses UAS operated by private entities, who are unconstrained by the Fourth Amendment restrictions that apply to the government. Private UAS users will enjoy strong First Amendment protections for gathering information in public spaces. But the rights conferred by the First Amendment are not unbounded, and it does not take much imagination to conclude that paparazzi, stalkers, and others could employ UAS in manners that pose clear violations of privacy. Part IV then explores some of the laws that can be used to address such behavior. Part V considers potential new voluntary and statutory privacy solutions and discusses some of the preemption issues that may arise when non-federal entities attempt to regulate UAS use.

Several overarching conclusions result from the analysis presented in this Article. First, a careful examination of Supreme Court privacy jurisprudence suggests that the Constitution will provide a much stronger measure of protection against government UAS privacy abuses than is widely appreciated. The Fourth Amendment has served us well since its ratification in 1791, and there is no reason to suspect it will be unable to do so in a world where unmanned aircraft are widely used. In addition, there are substantial statutory and common law protections that will limit the ability of non-government entities to violate privacy using unmanned aircraft.

This does not mean that there is no need for additional statutory UAS privacy protections. However, when drafting new laws it is critical to adopt a balanced approach that recognizes the inherent difficulty of predicting the future of any rapidly changing technology. In the early days of the Internet and mobile phones, it would have been nearly impossible to accurately foresee all of the uses—both positive and otherwise—to which these technologies have been applied. It is similarly difficult today to predict exactly how UAS will be used—or even what they will look like—in the coming decades. Although unmanned aircraft pose real and increasingly well recognized privacy concerns, they also offer real and much less widely appreciated benefits. A dialogue conducted with full awareness of this balance will be much more likely to lead to positive policy outcomes.

[1]. Under Secretary of Defense for Acquisition, Technology and Logistics, Department of Defense Report to Congress on Future Unmanned Aircraft Systems Training, Operations, and Sustainability 2 (2012), available at http://www.fas.org/irp/program/collect/uas-future.pdf. The term unmanned aircraft system (UAS) refers to an unmanned aircraft as well as the associated communication and control components used in its operation. FAA Modernization and Reform Act of 2012 (FMRA), Pub. L. No. 112-95, § 331, 126 Stat. 11, 72 (2012). “UAS” is also sometimes expanded as “unmanned aerial system.” The term unmanned aerial vehicle (UAV) refers to the aircraft itself. See, e.g., Bart Elias, Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations in the National Airspace System 1 n. 1 (2012), available at http://www.fas.org/sgp/crs/natsec/

[2]. Elisabeth Bumiller, A Day Job Waiting for a Kill Shot a World Away, N.Y. Times, July 29, 2012, http://www.nytimes.com/2012/07/30/us/drone-pilots-waiting-for-a-kill-shot-7000-miles-away.html.

[3]See FMRA §§ 331–336, 126 Stat. at 72–78.

[4]. United States v. Jones, 132 S. Ct. 945, 963 (2012) (Alito, J., concurring in the judgment).

[5]. For another treatment of some of the issues discussed here, see generally Alissa M. Dolan & Richard M. Thompson, II, Integration of Drones into Domestic Airspace: Selected Legal Issues (2013), available at http://www.fas.org/sgp/crs/natsec/R42940.pdf. Dolan and Thompson’s report was released while this Article was in the process of revision for publication.

[6]Id. at 945.

[7]. 533 U.S. 27 (2001).