|May 27, 2014|
Previously published on May 20, 2014
The widely-anticipated commercial deployment of drones piques the interest of critical infrastructure industries, the agricultural sector, and technology companies such as Amazon. Consistent with this commercial interest and its Congressional mandate, the FAA is developing proposed regulations for commercial drone operations by the September 2015 statutory due date, which likely will not be met. Recently, a manager within the UAS Integration Office announced the FAA is considering granting several exemptions under Section 333 of the FAA Reauthorization and Reform Act from the general prohibition against the commercial operation drones for (1) precision agriculture; (2) film making; (3) power line and pipeline inspections; and (4) oil and gas flare stack inspections.
On the other hand, constant media coverage and casual conversation on drones evoke thoughts of unrestrained government surveillance, widespread Fourth Amendment violations, and other privacy concerns for many interest groups and individuals. As noted by Catholic University law professor, Clifford S. Fishman, people almost reflexively equate drones with government surveillance; the mere mention of drones “bypasses the brain and goes straight to emotion.”
These concerns are not without foundation. Equipped with real time cameras and biometric identification systems, drones have the capability of being a surveillance super-tool, sending detailed images and tracking what the naked cannot. Privacy advocates argue that drones have the potential to erode Fourth Amendment protections and “reasonable expectations of privacy.”
Because of their relatively low cost (as compared to helicopters), the rapidly developing technology, and current use of drones by law enforcement agencies, the courts likely will be called upon to assess a range of Fourth Amendment challenges to the use of drones by law enforcement. A recent Supreme Court decision regarding global positioning system (GPS) devices suggests the jurisprudence on drone-based surveillance will evolve over time. In United States v. Jones, a unanimous Supreme Court held that attaching a GPS device to a person’s car to monitor his movements constitutes a search under the Fourth Amendment (requiring a warrant). Importantly, the length of the monitoring was dispositive; not the actual attachment of the device to the car. In his concurring opinion, Justice Alito stated, “It is clear that the attachment of the GPS device is not itself a search . . . [and] short-term monitoring of a person’s movements on public streets accords [with reasonable privacy expectations].”
More than ten states have enacted drone laws aimed at protecting their citizens’ privacy, and the ACLU reports that drone legislation has been introduced in 36 states. A central theme in state drone laws is that law enforcement officials must obtain a warrant before engaging in drone surveillance, and Virginia banned drone use by law enforcement until 2015, Congress’ deadline for the FAA to develop commercial drone regulations.
Texas prohibits warrantless drone searches, and allows drone use for multiple purposes including the use by owners and operators of pipelines for inspection and maintenance purposes. It is doubtful that state laws regarding permissible commercial uses of drones will be sustainable over the long term, in light of the FAA’s broad authority over the domestic airspace.
Privacy concerns associated with drones must be balanced against and should not impede the beneficial use of drones. This technology holds the promise of delivering real-time or near real time information regarding hurricane paths, the status and operation of pipelines, railroad infrastructure; enhancing productivity in agriculture; and saving lives during natural disasters. The purposes behind these drone operations do not implicate privacy expectations.
Nonetheless, proponents of commercial drone operations should acknowledge and be prepared to address privacy concerns through engagement with concerned citizens and establish best practices that effectively preclude the commercial deployment of drones as surveillance super-tools.