Will Drones Save Privacy Law?

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8 Responses

  1. Frank says:

    Great points here. One slightly wacky solution: let people “opt out” of the surveillance, by registering their desire for privacy in the same way that a trade secret holder might put up a fence around its property (see the Dupont v. Christopher case excerpt below), or website owners put up robots.txt opt-outs to avoid being copied into a search engine archive.

    Of course, as Scott Peppet has warned, any individualistic effort to maintain privacy is likely to unravel. And I’d predict the opt-out people would effectively be nominating themselves for more scrutiny by doing so. The real solutions probably involve a) flat bans on certain types of surveillance and b) strict requirements that metadata accompany any gathered data so that the gathered data is only used for particular purposes. Of course, after the Supreme Court’s Sorrell v. IMS decision, we can expect unaccountable data miners to tout a First Amendment “right to spy.” This is what I have called the “constitutionalization of the Kafkaesque,” an effort to constitutionally protect behavior that courts would find abhorrent in the commercial context as long as its merely eviscerating the privacy of natural persons, not corporations.

    From DuPont, on an early manned plane surveillance situation:

    “We think, therefore, that the Texas rule is clear. One may use his competitor’s secret process if he discovers the process by reverse engineering applied to the finished product; one may use a competitor’s process if he discovers it by his own independent research; but one may not avoid these labors by taking the process from the discoverer without his permission at a time when he is taking reasonable precautions to maintain its secrecy. To obtain knowledge of a process without spending the time and money to discover it independently is improper unless the holder voluntarily discloses it or fails to take [*1016] reasonable precautions to ensure its secrecy.

    “In the instant case the Christophers deliberately flew over the DuPont plant to get pictures of a process which DuPont had attempted to keep secret. The Christophers delivered their pictures to a third party who was certainly aware of the means by which they had been acquired and who may be planning to use the information contained therein to manufacture methanol by the DuPont process. The third party has a right to use this process only if he obtains this knowledge through his own research efforts, but thus far all information indicates that the third party has gained this knowledge solely by taking it from DuPont at a time when DuPont was making reasonable efforts to preserve its secrecy. In such a situation DuPont has a valid cause of action to prohibit the Christophers from improperly discovering its trade secret and to prohibit the undisclosed third party from using the improperly obtained information.”

  2. A.J. Sutter says:

    Would an opt-out raise Fifth Amendment issues, at least as far as drones operated by or on behalf of the state are concerned? Though the bigger question is, as Frank suggests, would a Roberts Court care? I’m not at all optimistic that it will be privacy law to be the one who’s dragged pointing and screaming as a result of this development — but thanks for pointing it out.

  3. Ryan Calo says:

    Thanks, Frank. I tend to agree with you (and Pam Samuelson) that trade secret law has a lot of potential for use generally in privacy.

    A.J., I don’t know that the Chief Justice would care but I can see his Court splitting on the kind of dragnet surveillance I’m describing. Thanks for your comment.

  4. James says:

    “What data there is suggests that Americans are nervous around robots.”

    Hrm, Eagle Eye, Forbin Project, Terminator series, Matrix series, I Robot, Screamers, Westworld, Runaway, Eve of Destruction, and misc other bad 60’s and 70’s B, C and D books and movies about robots/computers trying to slaughter humanity.

    Naw, no reason to be nervous about robots with the ability to watch your every move and rain down death from above. For your own good of course.

  5. Almiller says:

    Fly a drone over Chuck Schumer’s backyard and publish the results and we’ll have privacy in no time.

  6. CaptainCaveman says:

    Agree with #5 Almiller.

    Should fly those DIY hack jobs all over various politicians and police houses. See how they like this crap being rammed down their throats.

  7. Joe Blow says:

    It seems to me that domestic use of unmanned aerial vehicles in support of criminal investigations might fail the Kyllo & Riley test, as not commonly available technology. I think that Justice O’Connor’s line of reasoning and her test from Riley is gravely flawed – the corollary is that the more widespread an intrusion the more likely it’s constitutional – but it might initially serve to hamstring the use of this technology for other-than-defensive/security purposes. (I.e. securing a chemical plant using UAV’s is different from looking for crimes in a crowd or on city streets w/t UAV’s).

  8. Fatima says:

    Great blog post Ryan. I’d like to hope more people will mobilize for privacy even if it’s via robot backlash.

    @ Joe – It might fail the Kyllo & Riley tests today as not commonly available technology, but that might not be the case a few years down the line. Robots are being used more and more in every situation. Soon enough, I’m sure that security companies (including those for the home) will seize any chance to enter the arena and create aerial surveillance tools for every homeowner, making it a widely used technology. We’ll have to see how technology progresses!