Arial drones and privacy

The emergence of drone aircraft is redefining boundaries of privacy. Hobbysists have discovered the enjoyment of drones and may participate in lessons and obstacle courses (Fisher, 2016). Emergency responders use drones for surveillance but the surveillance concerns fighting fires and locating victims. Businesses such as power companies use drones to survey and manage power lines. Given the diversity of scenarios where drones may be encountered, the breadth of privacy challenges stem from the various uses of drones, their spatial presence relative to a human, and information capture and storage.  Identifying a central set of privacy principals to govern the balance of drone use versus individual privacy rights is of imminent importance. A starting point to the creation of privacy principals is an examination of issues such as the following issues discussed below. (I would also refer readers to Privacy and Drones: Unmanned Arial Vehicles by Anne Cavoukian, a former Canadian Information and Privacy Commissioner.)

1. Drones enable pervasive mass monitoring of individuals, but there are possible privacy enhancing technologies that could be used to mask identity. Some legal scholars indicate that aerial photographing of people from above is likely to not cause civil actions for invasion of privacy or trespass (Vacek, 2015). One reason could be the adaption of technologies such as facial blurring technologies that are akin to visual encryption. However, some technological approaches employ mathematical algorithms to move facial recognition capability but not removing facial details (Newton, Sweeney, & Malin, 2005). Other technologies block parts of the face such as eyes but not other facial features.  The lack of a consistent standard for identity protection and use of masking creates identification risk.  Whatever technologies ultimately prevail at masking identity, they need consistent application and context sensitivity since drones can be highly invasive if misused.
2. There may be a lack of clear definition about the application of Fourth Amendment protections against unlawful search and seizure because protections concern people and not places (Farber, 2016). Drones record information across geospatial areas, and individuals are situated at points within mapped areas. In 1986, the U.S. Supreme Court supported the use of video surveillance to detect marijuana in people’s backyards since airplanes were in public airspace (Cavoukian, 2012). As drone and camera technology becomes better at identification of individuals, a social discussion on the limits of drone surveillance and legal boundary of geospatial privacy become critical in reconciling the concept of people and place. The disconnect between an individual’s spatial reference and a drone’s concept of space have yet to be fully explored with respect to Fourth Amendment boundaries.  This particular topic will be interesting to monitor as drones become more commonplace.
3. The use of remote sensing and detection technologies may require advancements in statutory and judicial legal doctrine to increase the importance of privacy (Vacek, 2015). When individuals attempt to protect themselves from spying drones, there has been a tendency to place property rights over privacy rights. For example, a Kentucky father shot a drone flying over his property to protect the privacy of his daughter. His use of a gun was reported as resulting in a felony endangerment charge. He could also have been sued in small claims court for reckless destruction of property (Seibler, 2015). Without legal boundaries for permissible use of remote sensing technology, issues such as property rights can easily trump privacy since there is difficulty in defining a concept such as harm for remote viewing.
4. If U.S. geospatial data associated with people were to be identified as Personally Identifiable Information (PII), then laws and regulations concerning drone’s collection, transmission and storage of data would be potentially regulated by state data breach laws. There are 48 states with data breach laws (NCSL, 2017; Swire & Ahmad, 2012). However, the concept of geospatial privacy and drone use is an evolving concept (Cavoukian, 2012). Current literature cites the need for licensing drones and drone operators. There are also calls for privacy impact assessments. The discussion centered on drones should be transformed to a discussion on privacy boundaries and definitions of geospatial privacy.
5. Americans have grown acclimated to living in monitored society, and drones are an extension. Ann Cavoukian (2012) indicated that use of drones for surveillance may be an extension of current panoptic surveillance practices. Panoptic is a reference to the panopticon prison design created by English philosopher Jeremy Bentham. In this structure, there is a central structure for outwardly monitoring prisoners. This concept has been used to describe citizens accustomed to living in monitored societies, and the acceptance of widespread CCTV use is an example of accepted monitoring. If CCTVs are accepted, then drones are likely to be accepted for monitoring.

References

Cavoukian, A., PhD. (2012). Privacy and drones: Unmanned ariel vehicles. Information and Privacy Commissioner. Retrieved from http://www.publicsafety.gc.ca/lbrr/archives/cnmcs-plcng/cn29822-eng.pdf

Fisher, J. (2016). Drone Aviation 101. PC Magazine, 25.

Farber, H. B. (2016). Eyes in the sky and privacy concerns on the ground. Human Rights, 41(4), 23.

National Conference of State Legislatures (NCSL). (2017, Apr 12). Security breach notification laws. Retrieved from http://www.ncsl.org/research/telecommunications-and-information-technology/security-breach-notification-laws.aspx

Newton, E. M., Sweeney, L., & Malin, B. (2005). Preserving privacy by de-identifying face images. IEEE transactions on Knowledge and Data Engineering, 17(2), 232-243.

Seibler. (2015, August 11). One dad was arrested for shooting down spying drone. Retrieved from http://dailysignal.com/2015/08/11/should-you-be-able-to-shoot-down-a-drone-spying-on-your-backyard-one-dad-was-arrested/

Vacek, J. J. (2015). Remote sensing of private data by drones is mostly unregulated: Reasonable expectations of privacy are at risk absent comprehensive federal regulation. North Dakota Law Review, 90(3), 463-484.