Over the past several years, a flood of state and local legislation attempting to define the appropriate use of drones has not succeeded in appeasing all of the public’s concerns about protection of privacy.
The inaugural Drone World Expo, held in San Jose, Calif., in November 2015, included a panel discussion focused on privacy concerns related to drone usage. The panel represented stakeholders from several areas, including an insurance industry trade group, an aviation law enforcement agency and a public policy institute. From the different perspectives expressed, it is evident that the reality of privacy in American society is a complex issue, from both a personal and legal standpoint.
Expectation of Privacy is Changing
The reasonable expectation of privacy in the U.S. has already been dramatically diminished, largely without the public noticing. People with cell phones are leaving a location trail all the time. There are security cameras in stores, on highways and at ATMs. Large databases exist of credit card transactions and internet search histories. The potential exists for our privacy to be violated on a daily basis.
As a technology that allows unmanned aircraft to fly while carrying a variety of sensors, drones are no more invasive than a news helicopter overhead or an emissions monitor with a license plate camera on the side of the road. However, due to the original use of the technology for military purposes, portions of the U.S. public are raising questions about how drones will be used in civilian life, and what will prevent someone from using a drone in a destructive or offensive manner. Although the public is more knowledgeable about the positive and constructive applications of drones now than five years ago, the perception that we need more restrictions still exists.
In general, the operation of drones is already subject to existing privacy laws in each state. However, the nuances of applying the laws to drones are being hashed out in court and should eventually result in new legislation. “Our legal system is not equipped to handle new technology and that will need to be worked out over time,” says Konstantin Kakaes of the New America Foundation. “We typically fail to keep up with the implications of what we are doing. Consumers do not always have a full understanding of the possible impacts of new technology. For example, protection of our online privacy is not as strong as it should be, but it is evolving over time, as will drone privacy.”
Public Safety vs. Law Enforcement
One specific area of public concern is the use of drones for law enforcement and what exactly is allowed. The Fourth Amendment protects the public from unlawful search and seizure, which includes unreasonable persistent surveillance, while other existing laws limit the authority of state and local governments, but interpretation will vary from state to state. Under current law, a warrant is required in instances where there is an expectation of privacy, for example flying less than 400 feet over a house, or when using enhanced technology such as thermal imaging.
To clarify some of these topics and assist agencies with getting started using drones, the International Association of Chiefs of Police (IACP) developed a model policy for drone use by law enforcement. “Based on the guidelines the IACP Aviation Committee wrote in 2012, which incorporated suggestions from public policy experts, the model policy stresses transparency and communication with the public and the media,” says Captain Don Roby, chairman of the IACP Aviation Committee and training program manager for the Airborne Law Enforcement Association. “We encourage an open exchange of information about drone missions, as well as very clear written policies that absolutely must be followed for everyone’s protection.”
“The political ramifications and public concerns, as well as the financial investment, have resulted in smaller agencies putting a lot of thought into this before pursuing the new technology,” Roby says. “Even after the FAA releases comprehensive rules, there will still be many gray areas that will lead to court cases and new legislation. This is a very lengthy process that not everyone wants to be involved with.”
Roby continues, “That being said, the agencies that are experimenting with drones today are having great success. Crime scene and car accident reconstruction can be done much faster and more accurately, and for a fraction of the cost, than with traditional methods. In particular, drones are highly effective in supporting all kinds of public safety missions. Fire departments can identify hot spots in burning buildings, or air quality can be checked after a hazardous waste spill before people are sent in. Public safety applications, as opposed to surveillance, benefit a greater portion of the community and are not controversial.”
What are the Risks?
Since the Federal Aviation Administration (FAA) does not have jurisdiction over privacy issues, its rulemaking concentrates on keeping the National Airspace System (NAS) safe, which means regulating the operation of aircraft, the pilot qualifications, the size and condition of the aircraft, and the means for tracking aircraft. All of these factors are important when determining the risks involved with operating a drone and calculating the probability of something going wrong, but it’s not the whole answer. Liability and responsibility for paying for inevitable damages or injuries is still undetermined, which is why the insurance industry is a key participant in the development of best practices and guidelines for the nascent commercial drone industry.
The National Association of Mutual Insurance Companies (NAMIC), the largest property/casualty trade association in the U.S., is participating in the creation of a framework regarding privacy, accountability and transparency for commercial and private drone use, led by the National Telecommunications and Information Administration (NTIA). “The insurance industry is a major stakeholder in the future of drone use from two perspectives,” says Tom Karol, NAMIC General Counsel – Federal. “Insurance companies see great potential for using drones to inspect property without placing workers in hazardous situations, such as on steep roofs or at natural disaster sites. But we understand that seeing drones flying around can cause anxiety to some people, even if it’s not really different than a worker on a roof taking pictures. NAMIC is actively involved in the development of policies that address how data will be collected and managed to protect everyone’s privacy at a reasonable level.”
“We are also deeply involved in defining the legal and practical limits of responsibility and the risks involved with operating a drone to be able to write policies to protect our policyholders,” Karol says.
From an insurance perspective, commercial drone use will be tightly defined as non-personal collection, separate from law enforcement. By collecting minimal or no private data, hack-ability shouldn’t be an issue, which reduces the risk of privacy violations. Also, for routine structural inspections, policy holders will be asked for permission to have a drone on their property to avoid any problems. Drone operators who require insurance will be reviewed on a case-by-case basis, with the capabilities of the drone and its applications taken into consideration for writing a policy.
Privacy in the Future
As mentioned by all the stakeholders involved in building the commercial drone industry, addressing public concerns about privacy is at the forefront of many discussions. They are sensitive to the gray areas in the legal system and are working hard to put best practices into place that will reduce confusion and conflicts in the future. At some point, a drone flying by may be as ordinary as a snowboarder with a selfie stick. But until then, continuing to educate the public, maintaining transparency and carefully following written policies is the way to go.