By Mark Wolf
Will drones re-invent our concept of privacy? Is spying from the sky the same as climbing over your neighbor's 10-foot fence for a look-see? Is surveillance of land equivalent to the surveillance of people? Should police have to ask the public's permission to watch us?
As drones—unmanned aerial systems (UAS) to the policy world—proliferate, officials are increasingly moving to herd the flying cats into some sort of order in a regulatory and legislative landscape where every answer seems to beg at least another question.
NCSL's UAS steering committee tackled the thorny issue of drones and privacy in a fast-moving and informative session during a preconference session Tuesday of the NCSL Capitol Forum, moderated by Representative Shelley Hughes (R) of Alaska, who launched her legislative career because of concerns about drones.
There were brief opening statements from panelists John Verdi of the National Telecommunications and Information Administration, Jay Stanley of the ACLU and Professor Hillary Farber, associate professor of law at the University of Massachusetts. Then Representative Ed Orcutt (R) of Washington pointed out that he has long been able to purchase aerial photographs of land from the Department of Natural Resources and raised the issue of at what point, such photography "clicks over to become surveillance."
Stanley, a senior policy analyst with the ACLU, said his organization didn't object to Google Street View because any citizen can take a picture of a house but had never had to confront the issue of live streaming video of the same house.
The NTIA's Verdi said the distinction between surveilling people and property is not clear cut: "When we asked for public comment (on drone privacy issues), the Iowa Corn Growers Association filed comments that the data on crops they’re growing is some of the most sensitive nature they would like to see protected."
The ACLU has interests that could be in contention, Stanley said. The organization is concerned with surveillance and privacy issues but also advocates for free speech and the rights of photographers to photograph news events, including those involving police.
Hughes posed the question of whether drones might change the definition of "reasonable expectation."
"I do see it changing," said Farber. "Some states have attempted to definite that. If someone has a 10-foot fence around their property and is sunbathing or partially nude, they don't expect their neighbors to be flying something over them and taking aerial photography."
But, she added, if they made no attempt to conceal themselves from the airspace, why is it a violation for someone to climb the fence and take a photo instead of someone flying overhead and taking a photo?
The ACLU's Stanley said technology will change things but the technology is not in control. For example he said, surveillance cameras exist in many areas of the country but most are privately owned and almost none of them have microphones because wiretap laws make it difficult to put microphones in public areas.
"We can do that with drones as well."
Mark Wolf is editor the NCSL Blog.