Legal expert says drone technlogy requires new privacy laws in US

May 21, 2013 |

Salon reports in Senate: Drones require new privacy laws  about testimony before a Senate panel calling for an upgrading of privacy protections in light of the increasing proliferation of drones in the US.

The article provides:

As domestic surveillance drones proliferate, the public needs greater protection experts tell hearing

WASHINGTON – Privacy laws urgently need to be updated to protect the public from information-gathering by the thousands of civilian drones expected to be flying in U.S. skies in the next decade or so, legal experts told a Senate panel Wednesday.

A budding commercial drone industry is poised to put mostly small, unmanned aircraft to countless uses, from monitoring crops to acting as lookouts for police SWAT teams, but federal and state privacy laws have been outpaced by advances in drone technology, experts said at a Senate hearing.

Current privacy protections from aerial surveillance are based on court decisions from the 1980s, the Judiciary Committee was told, before the widespread drone use was anticipated. In general, manned helicopters and planes already have the potential to do the same kinds of surveillance and intrusive information gathering as drones, but drones can be flown more cheaply, for longer periods of time and at less risk to human life. That makes it likely that surveillance and information-gathering will become much more widespread, legal experts said.

The Federal Aviation Administration recently predicted about 7,500 civilian drones will be in use within five years after the agency grants them greater access to U.S. skies. Congress has directed the FAA to provide drones with widespread access to domestic airspace by 2015, but the agency is behind in its development of safety regulations and isn’t expected to meet that deadline.

If Americans’ privacy concerns aren’t addressed first, the benefits of potentially “transformative” drone technology may not be realized, Ryan Calo, a University of Washington law professor, told the Judiciary Committee.

It’s in “everyone’s interest to update the law even if only to provide the industry with the kind of bright lines its need to develop this technology,” said Amie Stepanovich of the Electronic Privacy Information Center, a privacy advocacy group.

But Calo and Stepanovich were divided on whether Congress should update federal privacy laws to set a national standard, or whether the responsibility should be left to state lawmakers to craft their own solutions. Several bills have been introduced in Congress that would, among other things, require warrants before drones could be used for surveillance.

Calo said he is concerned that some of the congressional legislation isn’t written broadly enough to cover other types of technology, like robots that can walk up walls.

There is also virtue in allowing states to experiment with their own laws, he said. A variety of drone-related bills have been introduced this year in more than 30 state legislatures.

But Stepanovich urged Congress to pass legislation requiring police to obtain warrants for drone surveillance, with exceptions for emergency situations or when necessary to protect human life.

There is already limited civilian drone use. The FAA has granted more than two hundred permits to state and local governments, police departments, universities and others to experiment with using small drones.

Initially, most civilian drones are expected to be around the size of backpack or smaller, weighing less than 55 pounds and unable to fly higher than most birds. The U.S. military, on the other hand, uses everything from unarmed, hand-launched drones like the 2.9-pound Wasp to systems like the MQ-9 Reaper that flies at an altitude up to 50,000 feet, has a 66-foot wingspan, weighs up to 10,500 pounds and can fire Hellfire missiles and guided bombs.

“I am convinced that the domestic use of drones to conduct surveillance and collect other information will have a broad and significant impact on the everyday lives of millions of Americans going forward,” said the committee’s chairman, Sen. Patrick Leahy, D-Vt.

“Small, quiet unmanned aircraft can easily be built or purchased online for only a few hundred dollars and equipped with high-definition video cameras while flying in areas impossible for manned aircraft to operate without being detected,” Leahy said. “It is not hard to imagine the serious privacy problems that this type of technology could cause.”

Earlier this year, the FAA solicited proposals to create six drone test sites around the country. With a nod to privacy concerns, the FAA said test site applicants will be required to follow federal and state privacy laws and to make a privacy policy publicly available.

The test sites are supposed to evaluate what requirements are needed to ensure the drones don’t collide with planes or endanger people or property on the ground. Remotely controlled drones don’t have a pilot who can see other aircraft the way an onboard plane or helicopter pilot can.

The agency has received 50 applications to create test sites in 37 states. Eventually, every state may have a test site, said Michael Toscano, president and CEO of the Association for Unmanned Vehicle Systems International, a trade association for the domestic drone industry.


The testimony before the Judiciary Committee is found here.  Ryan Calo’s evidence before the Committee is found here and provides:

United States Senate Committee on the Judiciary “The Future of Drones In America: Law Enforcement and Privacy Considerations”

March 20, 2013
Thank you Chairman Leahy , ranking Member Grassley, and Members of theCommittee for this opportunity to testify today.
My name is Ryan Calo and I am a law professor at the University of Washington. Iam also the former director for privacy and robotics at the Stanford Law School Center for Internet and Society. Last year, Congress charged the Federal Aviation Administration (FAA) with accelerating the integration of unmanned aircraft systems—known colloquially as “drones”—into domestic airspace.
 Drones are notnew; we deployed them for target practice throughout World War II. What is new is the prospect of their widespread use over American cities and towns. Drones have a lot of people worried about privacy — and for good reason. Drones drive down the cost of aerial surveillance to worrisome levels. Unlike fixed cameras, drones need not rely on public infrastructure or private partnerships. And they can be equipped not only with video cameras and microphones, but also the capability to sense heat patterns, chemical signatures, or the presence of a concealed firearm.
American privacy law, meanwhile, places few limits on aerial surveillanc. We enjoy next to no reasonable expectation of privacy in public, or from a public vantage like the nation’s airways.  The Supreme Court has made it clear through a series of decisions in the nineteen -eighties that there is no search for Fourth Amendment purposes if an airplane or helicopter permits officers to peer into your backyard. I see no reason why these precedents would not extend readily to drones.
Drones may also follow people around from place to place, even after the recent decision of United States v. Jones Jones held that affixing a global positioning device to a vehicle for the purpose of tracking the location of the occupant is a search within the meaning of the Fourth Amendment. But it is far from certain how Jones would apply to surveillance by a drone, which need not be affixed to anything.
Citizens have no reasonable expectation of privacy in contraband. Dogs can sniff luggage or cars without triggering the Fourth Amendment because, courts assume, dogs only alert in the presence of narcotics or other illegal possessions. A logical extension of this precedent, it seems to me, is that drones could fly around testing the air for drug particles and report back suspicious activity to law enforcement without ever implicating the Constitution. I have heard it suggested that the Supreme Court’s decision in Kyllo v. United States involving thermal imaging limits how drones might be used for surveillance. Kyllo holds, in essence, that officers need probable cause to peer into the home using technology that is unavailable to the general public. Setting aside whether drones would even draw a Kyllo analysis, the technology will indeed be available to the general public as soon as 2015 when the FAA relaxes its ban on commercial use.
The subject of today’s hearing is drones and law enforcement. I pause only to note that, if anything, there are even fewer limits on the use of drones by individuals,corporations, or the press. The common law privacy torts such as intrusion upon seclusion tend to track the constitutional doctrine that there should be no expectation of privacy in public. Some might go further and argue that the press (at least) has a free speech interest in using technology to cover newsworthy events.
This combination of cheap, powerful surveillance and inadequate privacy law has understandably resulted in a backlash against drones, one further compounded by our association of the technology with the theatre of war. This is in many ways a shame. Drones have the potential to be a transformative technology, helping governments, empowering civilians, and fostering innovation in countless ways. As the Congressional Research Service recently stated in a report, “the extent of [drone’s] potential domestic application is bound only by human ingenuity.”
Drones can be lifesavers in the hands of police and firefighters and flying smart phones in the hands of consumers and private industry. I am very concerned that we will not realize the potential of this technology because we have been so remiss in addressing the legitimate privacy concerns that attend it. There are several ways the government could change this picture. Ideally, we would take the opportunity to finally drag privacy law into the twenty- first century by reexamining our outmoded doctrines. This is a slow process, but courts do seem to be making strides in recent years.
Several federal bills have proposed placing limits on drones. I think we should be very careful here for a few reasons. First, the problem is broader than unmanned aircraft systems: flight is not a prerequisite for threatening civil liberties. There are robots that climb the side of buildings, for instance, that would not be covered under the draft bills I’ve read. Second, there is likely some benefit to allowing individual states to adopt different approaches to drones and seeing what works and what does not. There is one approach that I believe could act as stop-gap, and that is for Congress to instruct the FAA to take privacy into ac count as part of its mandate to integratedrones into domestic airspace. The agency has been largely silent on the issue of privacy— only recently did members of the privacy community receive a letter from the FAA asking for input in connection with the selection of drone testing centers.
But the FAA could require public and eventually private applicants to furnish the agency with a plan to minimize their impact on privacy as part of the application. The agency could then consider the plan, and even withdraw the license for those who flout it. This might help allay reasonable concerns over drones in the short term while continuing to permit their innovative and lifesaving uses.
Thank you again for the opportunity to speak today. I look forward to your questions.
The underlying factual issues stated by Calo are as applicable in Australia as in the United States of America.  The more decentralised nature of American politics has meant there have been legislative responses to drones on a local basis, including by cities.  In Australia legislating on privacy is essentially a State or Federal Government responsibility.  At this stage the legislature has not developed any legislation on the issue.

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