Drones and Privacy: What Can be Done?

Privacy is the hot button issue of the moment. There is a new headline every day. Most recently, we had the Supreme Court’s ruling in Riley v California and Google standing up for “the right to be forgotten.” While these stories are extremely applicable to every single American, they are deeply conceptual; the consequences lack physical manifestation and as a result it takes more than a glance to understand what these stories mean for privacy.

Not so for drones. The disruptive presence of unmanned aerial systems create an easy target (literally, in some cases) for demonstrating why our right to privacy is eroding.

The thing is, whenever a new story hits the 24 hour news cycle, the drone and its pilot are immediately seen as delinquents.

Most recently, a story made the rounds in which a Seattle woman was changing in her 26th floor apartment when she noticed a drone hovering outside her window.

This story, like so many others follows a predictable pattern:

1) Someone believes they are being filmed by a drone and gets angry.

2) Angry Alan calls the police on Peeping Tom.

3) The police show up and either a) The pilot is already gone or b) They politely ask the pilot to stop. Either way, the action ends there. If the pilot is gone, nothing can be done. After the police ask the pilot to land the drone, nothing more can be done because no one is breaking any laws….Unless the person who called the police beats up the pilot.

4) The media picks up the story, covers the three components of the action (above) and then explains that, according to the FAA, flying the drone was perfectly legal and until the FAA publishes official regulations, nothing can be done.

5) The story then makes the rounds on Twitter/Facebook etc and the general public blame the feds/Obama/Cthulhu  for the erosion of American privacy.*

 

Here ‘s the thing though: The FAA’s mandate is to integrate drones into the National Airspace safely and quickly. Nowhere in their job description does it say anything about protecting your privacy. Voyeurism, which is the real issue at hand, is dealt with on the state level.

Even when the FAA does get involved in a story like the one above, the investigation is always framed around the issue of safety or whether or not the drone was flown for commercial purposes rather than privacy.

For example, if there was any fallout from the FAA in the case of the Seattle woman, it would be because the pilot (Joe Vaughn, founder of Skyris Imaging) was using the drone as part of his business (which he was), not because he was trying to spy on naked woman.

In fact, if it came down to it, it would be in Vaughn’s best interest to say he was just looking in people’s windows rather than doing client work because there is no legally binding statute that prohibits the former whereas the latter could carry a hefty (yet unenforceable) fine from the FAA.

But I digress. Every one of the 50 states (plus Washington D.C., Guam, Puerto Rico etc) has their own individual voyeurism statute(s). In the same vein, the power to protect you from being spied on by a drone rests with your state government.

And this is good news for two reasons.

First, nearly every state has at least some sort of proposed legislation that addresses UAS and privacy, with nine states having actually enacted said legislation. Second, if we were waiting on the FAA to enact these laws, we would be waiting a very long time.

*As pointed out by Greg McNeal, Professor of Law at Pepperdine University and Forbes Contributor, there could be a number six on this list:

6) After the initial overreaction, the story gets retracted or new facts are revealed that nullify all the hysteria but this gets no attention, thus continuing the cycle.