How To Regulate Drones
I started to think about the intersection of robotics and the law in earnest a few years ago when I left private practice. In 2011, I came to the conclusion that drones had the potential to create a new Warren and Brandeis moment. Some combination of our visceral reaction to robotic technology, our fascination with flight, and our association of drones with the theater of war could, I thought, trigger a reexamination of privacy law. Drones have indeed captured the public imagination. And we are entering something of a policy window, to borrow a concept from Priscilla Regan. But just how citizens and lawmakers ultimately come down on the domestic use of drones remains to be seen. In this post, I will talk about what I think are the worst and best ways to regulate drones with respect to privacy.
For many, the word “drone” brings to mind an image of the military-grade Predator. The folks within the DYI Drones movement, however, and most local law enforcement, are more likely to be building or using a quadrocopter. These devices are light, generally battery-powered, and capable of somewhere between ten and forty five minutes of flight time. Obviously “unmanned aircraft systems,” as Federal Aviation Administration regulations refer to them, are quite varied. But I think three aspects are essential, mostly to distinguish drones from other technologies. The first is that they fly; the second is that they have the ability to sense the world around them; and the third is that they are capable of some small level of operational autonomy. Thus, the app-enabled Parrot AR Drone counts, whereas a driverless car or remote control plane with a camera does not.
The greatest privacy concern with drones, however we define them, seems to be that they will significantly drive down the costs of routine aerial surveillance, which will lead to more of it. I was a guest on NPR’s Talk of the Nation this week and a caller—apparently a municipal official charged with the enforcement of building code violations—suggested as much. He said he would be more likely to look for minor infractions if he had access to a drone. The other guest, from the law enforcement community, referred several times to the relatively low cost of operating a drone—$25 an hour was the figure he cited. Drones, the argument runs, will make massive surveillance too easy.
Street cameras are reasonably inexpensive as well. But drones are mobile, and may come equipped with the capability to do more than record video and audio. Drones could detect if people are armed, for instance, pinpoint and even intercept electronic communications, generate thermal images, or detect chemical signatures such as that given off by marijuana. It could be prohibitively expensive to put each of these sensors on every street corner, but not necessarily to fly one or two sets of them around a city. I should note that few unmanned aerial systems have these capabilities today, but some do, and the Department of Homeland Security is apparently looking into acquiring more.
Were privacy laws stronger in the United States, we might not worry so much about greater surveillance capacity. But very little in the way of privacy law limits the domestic use of drones. As a general matter, we do not enjoy a reasonable expectation of privacy in public spaces, nor spaces visible from a public vantage (including the airways). Five justices worried aloud in United States v. Jones that following someone around “electronically” for a long time may require a probable cause, but technically Jones was decided on the basis that officers affixed a GPS physically to a car—which drone surveillance does not require. Moreover, citizens do not generally enjoy a reasonable expectation of privacy in contraband. Dogs and other technologies that isolate wrongdoing may not even be searches. The Supreme Court may expand this doctrine in Florida v. Jardines—presenting the question of whether officers need probable cause to conduct a dog sniff of a home. Or perhaps they will find for the defendant on the basis that homeowners do not tacitly consent to bringing a police dog onto their property. But again, no consent is needed, and no trespass or seizure occurs, if a drone equipped with a chemical sensor flies over your person or your greenhouse.
I’ve heard members of the law enforcement community argue that Kyllo v. United States—which holds that officers need a warrant to use thermal imaging or other technologies not in general use to peer into the home—requires probable cause before officers can use a drone to look into your back yard. The officer on Talk of the Nation made this point. I think it clear that a court would instead apply the logic of Florida v. Riley. But even if not, drones will be in general use soon enough—September 2015 being the target date for when the FAA relaxes its ban on commercial drone use within the United States. I am not even convinced that Kyllo requires a warrant to use thermal or chemical sensors, where the drone—like the dog—alerts officers exclusively upon detecting a suspicious heat pattern or odor. Only the drone will know what hour the lady takes her sauna.
Given the increased prevalence of drones, their capacity for (cheap) aerial surveillance, and the limitations of contemporary privacy law, it makes sense that drones are causing a backlash. The question is what will happen in light of that backlash. I think the worst option is the least likely—that nothing will happen. As I discuss in a recent op ed, proposals to regulate drones emanate from all quarters. Even the FAA, which initially demurred on the issue, is currently seeking comment on the privacy impact of drones in connection with its mandate to authorize a half dozen drone testing sites.
Doing nothing would be a bad idea because it would fail to address the legitimate concerns of drone opponents and is likely to lead many to pressure the state and market to reject the technology. Which brings me to the next worse option: banning the use of drones entirely. For all of their dangers, drones have the potential to be a helpful, even game-changing technology. They have assisted in everything from disaster relief to firefighting to spotting polluters. I don’t know about you, but personally, I do not want SWAT officers going into dangerous conditions without situational awareness if we can avoid it. More important still are the uses we have not even dreamed up. Personal drones are essentially flying smart phones, and their potential for commercial innovation could be as great.
The second best option to banning drones is to place limits on their use. This is the approach of several federal and state bills. The state of Washington, for instance, contemplates a warrant requirement for the use of drones for any investigative purpose. There is certainly some logic to this approach—properly executed, drone-specific limits have the potential to allay fears while preserving some of the positive uses of the technology. But there are also several downsides. First, many of the bills I’ve seen only address the use of drones by public agencies. That officers have to get a warrant in some circumstances does little to address the specter of drone paparazzi. Second, as I alluded to above, agreeing on the definition of a drone is a nontrivial hurdle. The bill released for discussion last year by Representative Markey follows the FAA’s “unmanned aircraft systems” language. Whether the robot can fly strikes me as largely beside the point. Robots today are capable of climbing the side of buildings, jumping high into the air, and so on. (If Oz were to ban flying monkeys because of all the mischief they cause, the Wicked Witch might just buy them some motorcycles.)
Of greatest moment is that we would be squandering an opportunity to confront our inadequate privacy doctrines. The best way, I think, to address the privacy problems drones pose is to finally drag our privacy laws into the twenty-first century. Recent efforts by courts—like the D.C. Circuit—and scholars—like Daniel Solove and Danielle Citron (writing with David Gray) of this blog—have begun to develop standards for surveillance of public spaces, whether by drone, cell phone signal, or another technology. These standards, like present day Fourth Amendment doctrine, would also inform the privacy torts and interpretation of civil statutes. There will be line drawing problems, of course. But that is what courts do. It is reasonable to expect privacy in a big office but not in a little mall. There is no exigency when you smell X and none when you hear Y. Yet when you both smell X and hear Y there is suddenly exigency. The advent of the car or thermal imaging is a big enough change to require an adjustment in the equilibrium between police and perpetrator, but the invention of the bicycle and binoculars maybe not. I think we need a privacy law capable of drawing a distinction between reasonable and excessive public surveillance.
Second, I think we took a wrong turn with the dog-sniffing cases (plus United States v. Jacobsen) having little to do with the possibility of false positives. We are too close to a world in which technology can scan our persons and property—both digital and physical—in search of the myriad substances and pop songs rendered illegal by aggressive drug or copyright policy. No one has a right to commit a crime, but the right to privacy should stand independent. Not all courts have followed the United States in the regard. The approach taken by the Supreme Court of Canada in R. v. Kang Brown, for instance, strikes me as a more sensible one.
I will end on a positive note by saying that good drone policy might bubble up from anywhere. Virginia can ban drones while Nebraska and Colorado court them, and we’ll see what happens. Maybe a progressive state—I’m looking at you, California—will clarify its laws in a way that proves sustainable and just, setting an example for eventual national policy. The beauty of a federalist system is, of course, this opportunity for experimentation. In short, we should treat the domestic use of drones not just as a privacy crisis but also an opportunity. As always, your thoughts warmly welcome.