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Amazon made quite a splash last December when it announced “Prime Air,” a project to deliver Amazon orders by drone, as a complement to the familiar UPS and FedEx delivery trucks. The accompanying video—depicting a cute drone with an Amazon logo picking up a package at an Amazon warehouse and delivering it to happy homeowners—quickly went viral.

Some dismissed Prime Air as a clever publicity stunt. But the prospect of hordes of commercial drones buzzing through our neighborhoods and down our city streets is being taken quite seriously, along with the legal consequences—including the potential impact on privacy.

Until recently, there was little concern that commercial drone technology might outrun the legal framework for dealing with it. The Federal Aviation Administration (FAA), with broad authority over both manned and unmanned aircraft, has rarely issued certifications for commercial drones. But the FAA now has a mandate to open national airspace to drones. And in a sign that the future may arrive sooner than expected, last month an administrative law judge reversed the FAA’s imposition of a $10,000 fine against an aerial videographer for using a drone to shoot a promotional video, saying the FAA had exceeded its authority under existing rules. The FAA is appealing the decision.

What might the commercial drone future look like? Overseas markets provide a clue. In Japan and South Korea, drones are used to spray crops with fertilizers and pesticides. In Australia, television networks use drones to cover cricket matches—and drones made possible breathtaking shots of the 2014 Winter Olympics in Sochi. In the UK, energy companies use drones to inspect oil platforms, and real estate agents use them to video properties for sale. In Germany, Deutsche Post DHL is testing a “Paketkopter” drone to deliver small packages to hard-to-reach locations. Various aid organizations are looking into having medicines and other critical goods delivered by drone around the globe.

In the past few months, there’s been a flurry of activity in the U.S. to prepare for the regulation of commercial drones, including addressing potential threats to privacy rights. A number of players are staking out positions:

The Federal Aviation Administration

The FAA’s mission to “promote safe flight of civil aircraft” encompasses drone use. In the FAA Modernization and Reform Act of 2012, Congress directed the FAA to develop a comprehensive plan to implement drones into civil commerce by 2015—a deadline the FAA is unlikely to achieve. However, the FAA is moving ahead with fulfilling one key mandate in the 2012 legislation: establishing a test-site program. At the end of last year, the FAA announced that six applicants from around the country had been selected to operate drone test sites, from the University of Alaska to New York’s Griffiss International Airport.

Privacy issues regarding the FAA’s test-site program are being addressed head on. After issuing a public notice and soliciting comments, the FAA announced privacy requirements for the test sites, including that each test site operator:

  • Have privacy policies governing all activities conducted at the test site, make the policies publicly available and conduct annual reviews to ensure compliance;
  • Comply with all applicable privacy laws, and
  • Have a written plan for the operator’s use and retention of data collected by drones operating at the test site.

Not surprisingly, the FAA privacy requirements haven’t satisfied everyone. Criticisms have ranged from “the FAA should focus on its safety mission and keep its nose out of privacy matters” to “the FAA should require every test-site operator to conduct a full privacy impact assessment and make all data collected publicly available.” But privacy advocates can take comfort in the fact that the FAA has recognized privacy as a “regulatory driver” of its supervisory role regarding drones.

Congress

One of the staunchest advocates of strict privacy rules governing drone flights is Sen. Ed Markey (D-MA), who co-chairs a bipartisan Congressional Privacy Caucus. Proclaiming that privacy legislation is necessary to “prevent flying robots from becoming spying robots,” Markey last year introduced the Drone Aircraft Privacy and Transparency Act of 2013, currently with the Senate Commerce, Science and Transportation Committee. This legislation would:

  • Require that the U.S. Government carry out a study to identify any potential threats to privacy protections posed by the integration of drones into the national airspace system;
  • Ban the FAA from issuing drone permits unless the license application includes a “data collection statement” explaining what kind of data will be collected, how the data will be used, whether the data will be sold to third parties and the period for which the data will be retained;
  • Require the FAA to create a publicly available website that lists all approved licenses and includes the data collection statements, any data security breaches suffered by a licensee and the times and locations of drone flights, and
  • Allow enforcement of drone privacy requirements by the Federal Trade Commission, states and individuals.

Additional data minimization rules would apply in the case of drones operated by law enforcement agencies.

States

When it comes to regulating drone use, states are torn. On the one hand, they want to attract the burgeoning drone industry to their districts. On the other hand, they want to protect the privacy of their residents. The result is a hodgepodge of legislation, resolutions and proposals, with more than 35 states considering drone legislation this year.

Industry Advocacy and Public Interest Groups

For the most part, interest organizations are taking predictable positions. The Association for Unmanned Vehicle Systems International, a leading industry trade group, is insisting that privacy rules applicable to drones should be “platform-neutral,” treating manned and unmanned aircraft the same. Chief Executive of the Aerospace Industries Association and former FAA administrator Marion Blakey recently opined that “there's been too much rhetoric about privacy concerns.” The Electronic Privacy Information Center (EPIC), by contrast, has taken the position that drones pose a substantial threat to privacy because they “are designed to undertake constant, persistent surveillance to a degree that former methods of aerial surveillance were unable to achieve.” EPIC has started a petition addressed at the Bureau of Customs and Border Protection to establish privacy regulations on the use of unmanned drones, signed by 25 organizations at the time of this writing, including the Center for Democracy and Technology (CDT), the Government Accountability Project and the Electronic Frontier Foundation. The American Civil Liberties Union (ACLU), while similarly favoring strong privacy protections regarding drones, also emphasizes the importance of protecting First Amendment values, e.g., by not unduly restricting journalistic use of drones.

Once the dust settles between the warring factions in the drone privacy debate, what should the privacy protections look like, in particular, for commercial drones? The Fair Information Practice Principles provide a good touchstone, as emphasized by both the CDT and the ACLU:

  • Transparency: Require drone operators to create and make publicly available a data collection policy, along the lines of the Markey legislation.
  • Individual/Community Participation: Allow communities to be involved in drone regulation, and permit residents to opt out of having their property subject to surveillance or their personal information collected.
  • Purpose Specification and Use Limitations: Ensure that commercial drones are used only for specific, publicly announced purposes and data collection is limited to the fulfillment of those purposes.
  • Data Quality and Integrity: Require drone operators to ensure the accuracy of data collected, and allow individuals access to—and the opportunity to correct—personal data collected by drones.
  • Security: Ensure that drone-collected data is protected from unauthorized access or disclosure, that communications between drones and ground stations are secure and that certain sensitive communications are encrypted.
  • Accountability and Auditing: Require training of commercial drone operators in compliance with privacy and security requirements, subject to compliance audits by the FAA or another designated agency.

With appropriate privacy safeguards in place, if those Amazon drones do eventually take to the skies, at least we can be reasonably confident they’re minding their own business.

Written By

Michael Whitener, CIPM, CIPP/C, CIPP/E, CIPP/G, CIPP/US, CIPT

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