Do Drones Raise Unique Privacy Concerns?

Federal Trade Commission (FTC) Fall Technology Series

On October 13, 2016 I will be a speaker at the Federal Trade Commission’s Fall Technology Series.

ftc-fall-technology-series-drones-mcneal-privacy

Americans are increasingly familiar with drones, also known as Unmanned Aerial Systems (UAS). These devices have become one of consumers’ most popular technology purchases; some estimate nearly one million new drones will be purchased in 2016. Many consumer drones are controlled by tablet or smartphone, and feature high-definition cameras, GPS, and the ability to fly autonomously.

Commercially available drones are even more sophisticated, and are increasingly used for a variety of activities, including monitoring and inspection, news reporting, search and rescue of missing persons, and delivery of commercial packages or medicine to rural areas. With potential to transform entire industries, the devices may generate significant economic benefits. Although drones may offer society numerous benefits, the potential for information collection through filming, photography or other types of monitoring raises the potential for consumer harms including invasion of privacy, identification, trespass, and harassment.

The National Telecommunications and Information Administration (NTIA) recently convened multi-stakeholder meetings to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private drone use. The drones workshop will explore the following questions related to commercial uses of drones:

What are the present capabilities of drone technologies? What technology do we foresee in the near future? In the longer term? What privacy concerns do drones raise? Are these concerns unique to drones, or are drones no different from other technologies? For people whose information may be captured by drones, what is the best way to provide transparency?  Given the difficulties of providing consumers with meaningful choices, what should the rules around privacy look like?
Should there be limits on data collection or limits on use?

Moderator:
Jamie Hine/Kate White
Federal Trade Commission

Panelists:

Gregory McNeal
Professor of Law and Public Policy, Pepperdine University School of Law Co-Founder, AirMap
Jeramie D. Scott
Director, EPIC Domestic Surveillance Project
Brendan Schulman
Vice President of Policy & Legal Affairs, DJI
Kara Calvert
Director, Drone Manufacturers Alliance

Drones and the Future of Aerial Surveillance

The George Washington Law Review

George_Washington_Law_Review_Drones_and_Privacy

Drones and the Future of Aerial Surveillance, George Washington Law Review.  

On February 15, 2015 the FAA announced historic regulations that for the first time in American history will allow small aircraft without onboard pilots — drones — to fly in the national airspace. Legal and technological developments have thus made it all but certain that drones will be a catalyst for new ways of thinking about privacy and surveillance. This is especially the case because the drones that the FAA has approved for operation in the national airspace (small aircraft under 55 pounds) are the exact type of drones that local law enforcement will be most likely to acquire and use. Thus, the battle over privacy and aerial surveillance will be fought in statehouses throughout the country. This article seeks to frame future discussions about how states will handle the privacy issues associated with aerial surveillance.

The article takes the counterintuitive position that technology may make unmanned aerial surveillance more protective of privacy than manned surveillance. It further argues that scholars and legislators should move beyond a warrant-based, technology centric approach to protecting privacy from aerial surveillance. Such an approach is unworkable, counterproductive, and may stifle efforts to enact more privacy protective legislative regimes. Instead, this article proposes that legal reforms should focus on excluding low altitude flights and surveillance coupled with imposing limits on persistent surveillance, requiring enhanced accountability procedures for data retention and access, and creating new transparency, accountability and oversight measures.

McNeal Testimony Regarding Drones Privacy and Surveillance

I recently testified before the House Judiciary Committee regarding drones and domestic surveillance.  Pepperdine ran a story on the testimony which I’ve pasted below.

——

Associate Professor of Law Gregory McNeal testified before the U.S. House of Representatives, Committee on the Judiciary on May 17 regarding the use of unmanned aerial systems, known commonly as drones, for surveillance purposes inside the U.S. Professor McNeal, an expert in national security law and policy, cautioned against the use of broadly worded warrant requirements as a tool to protect privacy or public safety. Instead, he recommended surveillance legislation that would require more transparency in the use of these systems by law enforcement.

McNeal’s testimony offered various considerations for pending legislation, including arguing against blanket prohibitions on the use of drones for the collection of evidence or information unless authorized by a warrant, and the argument that broadly worded use restrictions that prohibit use of evidence gathered by drones exceed the parameters of the Fourth Amendment and may not serve to protect privacy. Furthermore, McNeal argued that Congress should eschew drone specific legislation and instead look to legislating what places are entitled to privacy protection and clearly define search terminology including terms such as surveillance and private property.

“What’s interesting about working in national security is that there is a foreign affairs and international law aspect to my work that was one strand of my research, drones being used on battlefields,” McNeal said. “But, national security also encompasses domestic law enforcement, homeland security, and all manner of government surveillance and tracking. Those issues also relate to my teaching, specifically criminal procedure and criminal law.”

McNeal noted that his writing on the topic began when policymakers became interested in how drone technology would be used in the United States and what the legal implications of such use might be. That writing, he said, was in the form of short essays that have appeared in Forbes and longer draft papers that will soon be published law review articles. The writing provided an opportunity for McNeal to speak at the Association of Unmanned Vehicles International national conference.

“This was the biggest gathering of manufacturers in the aerospace industry and my panel was focused on privacy law and surveillance,” McNeal said. “From that experience I began hearing from legislators at the federal level and from various state governments, to the point where about once every other week over the past year I’ve been fielding a phone call or an email from someone asking me to comment on draft legislation. All of that came to a head last week with my invitation to testify before the House Judiciary Committee.”

McNeal is a professor at Pepperdine University where his research and teaching focus on national security law and policy, criminal law and procedure and international law. He previously served as Assistant Director of the Institute for Global Security, co-directed a transnational counterterrorism grant program for the U.S. Department of Justice, and served as a legal consultant to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba. He is a Forbes contributor where he writes a column about law, policy and security.

University of Washington: Drones, Privacy, and Surveillance

UWLogo

On Thursday November 1st, at 12 noon I will be making a presentation entitled Drones on the Homefront: Privacy at Risk?  This presentation is based on my paper Drones and Privacy Governance, a short abstract of that paper appears below. 

Unmanned systems (drones) and other technological innovations raise serious questions about modern conceptions of privacy. This paper examines the constitutional doctrine related to aerial surveillance and technology, and finds that current doctrine is unlikely to prevent the use of unmanned systems. The paper next addresses calls to create a statutory requirement that will subject the use of unmanned systems to the warrant requirement. These calls are rejected because they fail to protect privacy, while unnecessarily hampering legitimate law enforcement efforts. To best protect privacy, the paper suggests various mechanisms of democratically centered privacy governance, and a regulatory regime to govern the use of unmanned systems. The paper’s appendix includes a model bill appropriate for adoption by cities, states, and the federal government. The bill outlines the various privacy governance measures discussed in the body of the paper. 

CU Boulder: Drones on the Homefront, Is Privacy At Risk?

CUBoulder

On Thursday October 11th at 12pm I will be making a presentation based on my paper Drones and Privacy Governance.  The event will be open to the public and refreshments will be served.  

Here is the abstract of my paper: 

 Unmanned systems (drones) and other technological innovations raise serious questions about modern conceptions of privacy. This paper examines the constitutional doctrine related to aerial surveillance and technology, and finds that current doctrine is unlikely to prevent the use of unmanned systems. The paper next addresses calls to create a statutory requirement that will subject the use of unmanned systems to the warrant requirement. These calls are rejected because they fail to protect privacy, while unnecessarily hampering legitimate law enforcement efforts. To best protect privacy, the paper suggests various mechanisms of democratically centered privacy governance, and a regulatory regime to govern the use of unmanned systems. The paper’s appendix includes a model bill appropriate for adoption by cities, states, and the federal government. The bill outlines the various privacy governance measures discussed in the body of the paper. 

OU Law School Presentation on Drones and Privacy

NewImage

On Thursday October 4th at 12pm I will be making a presentation based on my paper Drones and Privacy Governance.  The event will be open to the public and refreshments will be served.  

Here is the abstract of my paper: 

 Unmanned systems (drones) and other technological innovations raise serious questions about modern conceptions of privacy. This paper examines the constitutional doctrine related to aerial surveillance and technology, and finds that current doctrine is unlikely to prevent the use of unmanned systems. The paper next addresses calls to create a statutory requirement that will subject the use of unmanned systems to the warrant requirement. These calls are rejected because they fail to protect privacy, while unnecessarily hampering legitimate law enforcement efforts. To best protect privacy, the paper suggests various mechanisms of democratically centered privacy governance, and a regulatory regime to govern the use of unmanned systems. The paper’s appendix includes a model bill appropriate for adoption by cities, states, and the federal government. The bill outlines the various privacy governance measures discussed in the body of the paper. 

Drones on the Homefront: Privacy at Risk?

Does the domestic use of drones (unmanned aerial vehicles) by law enforcement threaten privacy?  I’ll be discussing that topic at 1pm on Thursday September 13, 2012 at the University of San Diego, School of Law.

From the flier:

DID YOU KNOW…

– The Federal Aviation Administration has predicted that within 20 years, 30,000 commercial and government drones could be flying in U.S. skies.

– Some drones called “nano drones” can be as small as an insect.

– Drones can be equipped with surveillance technologies to identify and track people.

– There are multiple bills currently being proposed in the House to limit the use of drones.

– The Federalist Society will be offering FREE FOOD at this one-of-a-kind, timely discussion.

Guadalupe Hall, Rm. 117 at 1 pm Professor Gregory McNeal, Drones on the Homefront: Privacy at Risk?  My remarks are based in part on my work-in-progress, Drones and Privacy Governance.

Drones on the Homefront: Privacy At Risk?

http://www.du.edu/psychology/gem/DU-logo.jpg

On Tuesday, August 28th at 12 noon I will be presenting at The University of Denver, Sturm College of Law and on Wednesday, August 29th at 9am I will be making the same presentation at The University of Wyoming, College of Law.

The panel is entitled Drones on the Homefront: Privacy at Risk?

My remarks are based in part on my work-in-progress, Drones and Privacy Governance.