New legislation may outlaw the use of drones by artists — just when robot aircrafts and their aerial stunts are really taking flight. We all have the right to a drone of our own. Admittedly, if everyone flies robot aircraft, the skies will get very full, and some drones are large enough and can go high enough to worry civil aviation authorities.
But a drone equipped with a camera is an amazing perspective-shifting device that allows anyone to see the world in a new way. American artists who make use of drones — from graffiti artists to anarchistic scrutineers of the security state — are worried that new regulations to be submitted to Congress by the Federal Aviation Administration later this year will make it impossible to use a drone to spray paint from above or make a video of the US-Mexico border.
Drones are becoming one of the coolest toys around. There are currently 2. Where We Need to Improve However, there are still some areas that require significant improvement: Regulation.
Despite some initial progress in defining regulations for drones, there are many specifics left to be decided. For example, it may take the FAA years to decide how to regulate drone-based package delivery.
The laws dictating drone operations will be necessarily complex, to account for all the ways drones are currently used and how they could be used in the future.
Coming up with laws that enable innovation, but restrict infringements on privacy and misuses of airspace, will be incredibly difficult.
One of the greatest appeals of drones is their ability to fly without a pilot—kind of. For the most part, someone still needs to be controlling the vehicle remotely though there are some exceptions. The problem gets even more complicated when considering sensitive applications, like military use. You can get a usable consumer model for a few hundred dollars , but the drones required for companies to invest in life-changing technologies and systems would cost several thousand dollars each—and they might need an entire fleet of them.
Because applications like drone delivery and service are intended to save money, it could be years before drone models are able to be produced for a cost low enough to justify their use. Reliability is another major hurdle drones are facing.
Imagine a future where packages are delivered almost exclusively with drones; would you want to order from a carrier that has a 90 percent delivery success rate? Probably not. Any number of things could go wrong here, including launch failures, navigation errors, or even disturbances or theft of the package from people witnessing the drone dropping something off. Public acceptance. Finally, drones need to win over more public acceptance.
If consumers are wary of drones being used to survey their property, or deliver their packages, or carry out military missions, companies and organizations will be far less willing to use them.
Only time will be able to convince them. Join Us. Sign In. Conference Calendar. Calls for Papers. By requiring law enforcement to publish data or logs, legislators can add a citizen-centric political check that will help quell the fears of a society that is not yet certain how it should react to the increasing presence of aerial surveillance devices over the skies of America.
Recognize that technology such as geofencing and auto-redaction may make aerial surveillance by drones more protective of privacy than human surveillance. Technology continues to evolve at such a rapid pace that it is possible drones and other aerial surveillance technologies may enable targeted surveillance that protects privacy, while still allowing for the collection of evidence.
Technology can further the goal of privacy by using geofencing technology to only collect evidence from specific locations, and using redaction programming to automatically obscure information at the point of collection. Creative legislators can embrace technology by writing laws requiring that aerial surveillance devices have systems to protect privacy.
For example, imagine that the police receive a tip about marijuana growing in the backyard of Main Street. They dispatch a helicopter to gather aerial photographs of the Main Street property from an altitude of feet. While the police are overhead photographing Main Street, they look down and see a woman sunbathing in the adjacent property at Main Street. Imagine the same collection scenario, this time conducted by a drone or a camera on a manned helicopter with software that is programmed to protect privacy.
Prior to the mission the aircraft would be instructed to only document the activities ongoing at Main Street. The software could be required to automatically redact any additional information gathered from adjoining properties such as Main Street, the home of our hypothetical sunbather.
Furthermore, legislators could also require that software automatically blur the faces of individuals, with faces only being revealed upon an adequate showing of either reasonable suspicion or probable cause the particular standard to be determined by the legislature to believe that an individual is or was involved in criminal activity.
If a state or local government required that aircraft engaged in aerial surveillance be coded for privacy, the rights of the adjacent sunbather and any other inadvertently observed individuals would be protected. If such policies were mandated, society may evolve to the point where drones are mandated when manned flights might place law enforcement officers in a situation where they might be tempted to make unwanted observations of innocent people.
Thus, drones may someday be more protective of privacy than manned aircraft. If legislators choose to ignore the core principles and approach articulated above, the following recommendations are intended to provide legislators with principles that will guide their policymaking in the more problematic warrant-based approach to drones and aerial surveillance. Legislators should reject calls for a blanket requirement that all drone use be accompanied by a warrant.
If legislators forgo the property rights approach detailed in Part A. Such prohibitions are overbroad and ill-advised. Under current Fourth Amendment jurisprudence, police are not required to shield their eyes from wrongdoing until they have a warrant.
Why impose such a requirement on the collection of information by drones? Much of the anti-drone activists efforts are aimed at the threat of persistent and pervasive surveillance of the population by the government, an understandable fear. But what is an unreasonable fear, and should not work its way into legislation, is a ban on ordinary aerial observations that are only controversial because they take place with a remote controlled helicopter rather than a manned one.
For example, imagine a police officer was on patrol in her patrol car. While driving, she witnesses the car in front of her strike a pedestrian and speed off. Until witnessing the crime she did not have probable cause the predicate level of suspicion for a warrant , or even reasonable suspicion the predicate level of suspicion for a brief investigatory stop to believe the vehicle in front of her would be involved in a crime.
Nonetheless, that dashcam video may be used as evidence against the driver in a subsequent criminal proceeding. However, under broadly worded proposals that have been introduced in many state legislatures and the U.
Congress, the same piece of evidence if gathered by a drone would be inadmissible in court because police did not have a warrant. West and John R. Police receive an anonymous tip that someone is growing marijuana in their backyard. A police officer attempts to view the backyard from the ground but his view is blocked by a 10 foot tall fence. The officer next decides to fly a commercially available remote controlled helicopter 51 over the backyard and from a vantage point that does not violate FAA regulations observes marijuana plants growing in the yard.
This observation would be unlawful under proposals that require a warrant for observations from a drone. Ciraolo 52 decision which upheld aerial surveillance discussed above. The only difference is that in Ciraolo , the officer flew over the backyard in an airplane, rather than using a drone.
In fact, in Ciraolo the Court noted that not only would observation of the marijuana plants from the air as described above be lawful, police officers peering over the fence from the top of a police truck would also be behaving lawfully, and by extension, observation of the marijuana plants by police from the third floor of a neighboring home would also be lawful. But under proposals requiring a warrant for observations by a drone, this evidence would be inadmissible.
The examples above raise questions about what public policy goals are advanced by the suppression of evidence of a crime when documented by a drone, when the same evidence if recorded by a dashcam, observed from an airplane, or viewed from a neighboring home would be admissible in court. Such examples highlight the requiring warrants for evidence gathered by drones, when other methods of gathering the same evidence would not require a warrant.
Some jurisdictions have enacted limitations on how information gathered from drones may be used. Legislators should reject these broadly worded use restrictions that prohibit the use of any evidence gathered by drones in nearly any proceeding. Such restrictions exceed the parameters of the Fourth Amendment and in some circumstances may only serve to protect criminals while not deterring governmental wrongdoing.
A simple hypothetical can help to illustrate the problem with this approach. Imagine that law enforcement uses a drone to search for a lost hiker in a state park.
This is a search and rescue mission that fits within the public safety, emergency, or exigency exceptions in most legislative proposals aimed at controlling drone usage. However, imagine that during the course of the search the drone observed a man stabbing a woman to death in the park. That collection was entirely inadvertent, and as such suppressing the videotape of the stabbing would not serve to deter the police from using drones in the future as they were not searching for an unrelated stabbing crime, they were searching for a lost hiker.
It is difficult to see what public policy goal is furthered by suppressing evidence of a crime merely because the evidence was gathered from a drone instead of a helicopter. Do legislators really want to be in the position of making it harder to punish perpetrators of violent crime?
If the discovery were genuinely inadvertent, there is little to no deterrent value that justifies suppressing such evidence. If legislators choose to impose a warrant requirement, they should codify existing exceptions.
If legislators seek to impose a statutory warrant requirement on the use of drones, they should codify exceptions to the warrant requirement and exclusionary rule that the courts have developed through decades of jurisprudence. Such codification could either state that existing exceptions to the warrant requirement apply to the statutory requirement of a warrant, or the statute could enumerate the exceptions that should apply.
Legislators should carefully define terminology and specify what places are entitled to privacy protection. If legislators choose to prohibit certain types of surveillance, such as prohibiting drone surveillance, the legislative drafting task will become more difficult and the task of defining terminology will be critical.
What a layperson sees when they read the word search or surveillance, what a legislator means when they write it, and what a court may think the legislature meant are all different things.
As such, when using terms like search, surveillance, reasonable expectations, curtilage, private property, public place and other terms of art, legislators should specify what the terms mean.
This definitional task will be the most important part of the legislative drafting process as the terminology will drive what actions are allowable and what places are entitled to privacy protection. Legislators should consider adopting an entirely new set of definitions, and be prepared to reject existing terminology which may be confusing.
A good example of a well thought out definitional approach is the proposed legislation offered by Professor Christopher Slobogin. The emergence of unmanned aerial vehicles in domestic skies raises understandable privacy concerns that require careful and sometimes creative solutions.
The smartest and most effective solution is to adopt a property rights approach that does not disrupt the status quo. Such an approach, coupled with time-based prohibitions on persistent surveillance, transparency, and data retention procedures will create the most effective and clear legislative package. Legislators should reject alarmist calls that suggest we are on the verge of an Orwellian police state.
Is the sky truly falling? We should be careful to not craft hasty legislation based on emotionally charged rhetoric.
Outright bans on the use of drones and broadly worded warrant requirements that function as the equivalent of an outright ban do little to protect privacy or public safety and in some instances will only serve to protect criminal wrongdoing. The best way to achieve that goal is to follow a property centric approach, coupled with limits on pervasive surveillance, enhanced transparency measures, and data protection procedures.
He is an expert in law and public policy with a specific focus on security, technology and crime. Troy A. Causby In , we are aware to some extent of government surveillance on ordinary citizens. In the future world that Phang predicts, however, state surveillance is not as pervasive as private surveillance by corporations.
Phang portrays a world where drones regularly patrol the skies; however, she also shows us that the owners of at least some of those drones are not the government, but private companies, such as the one Gwen works for.
While the previous set of drafts distinguished drones on the basis of their size, the current set add drone functions and their use context to the mix. The current draft does not distinguish between commercial or non-commercial use. The new EASA laws place drones into three categories based on risks and governing authority. For example, the open category is a low-risk category for drones that weighs less than 55 lbs.
Such drones are regulated by local police. Essays Essays FlashCards. Browse Essays. Sign in. Essay Sample Check Writing Quality. Show More. Read More. Words: - Pages: 6.
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