One of Jay Rockefeller’s final acts in his 30-year Senate career was to circulate a draft bill that would impose stringent privacy regulations on operators of drones. The bill, introduced in December after the Senate adjourned for the year, restricts the collection and publication of information collected by drones.

Just one problem: the draft bill, if it were to become law, undoubtedly would violate the First Amendment. And it wouldn’t just infringe the First Amendment in a small, technical way. The entire premise of the bill is a thumb in the eye of the protections that free speech and press advocates have secured in decades of legal battles.

Currently, the Federal Aviation Administration (FAA) prohibits the commercial use of drones, unless the operator receives a special exception or waiver. The FAA is preparing a proposal to allow the commercial use of drones. Newspapers, broadcasters, news websites and other media outlets are understandably eager to use drones to capture videos and images of natural disasters, mass protests and other subjects that would not be easily accessible via other technology. Take a look at some of the astonishing examples of drone journalism that the University of Missouri’s Drone Journalism Program has compiled.

As the FAA prepares its proposed rule, a number of privacy advocates have raised legitimate concerns about the use of drones to gather information about individuals. Rockefeller’s bill attempts to address these concerns by regulating the use of drones to collect information about individuals. But the bill is so sweeping that it would make it extraordinarily difficult for the media to use drones to cover news.

I’ve written a detailed overview of the draft legislation here on Covington & Burling’s InsidePrivacy blog. The bill would prohibit the use of drones for “surveillance of an individual” without the individual’s prior express consent. If the drone operator does not obtain that consent, the operator must “anonymize and aggregate, as necessary, to eliminate any identifiable images, data or other information.” The bill also would require drone operators to adopt a detailed privacy policy and subjects them to significant regulation and oversight by the Federal Trade Commission (FTC).

Such a law would be a significant intrusion on free speech and press.

The bill restricts information-gathering by requiring drone operators to always seek consent before gathering information about an individual with a drone. While this may sound well-intentioned, it would severely hamper the ability to cover breaking news and conduct investigations.

I say this not only as a privacy lawyer but as a former journalist. When I was a reporter at The Oregonian newspaper, my colleagues and I spent more than a year reporting on an El Paso charity that was the largest recipient of set-aside federal government contracts through a poorly overseen program designed to create jobs for people with severe disabilities. The charity, which manufactured chemical warfare suits and other gear for the military, employed few people with severe disabilities, but it did manage to provide millions of dollars to businesses affiliated with its chief executive officer, Bob Jones.

Multiple sources marveled at length about Jones’s lavish lifestyle, including his palatial house. We attempted to visit the home, but Jones lived in a guarded, gated community.

Undeterred, our newspaper took on the considerable expense of chartering a helicopter so our photographer could capture a picture of his sprawling estate. The photograph was among the most important elements of our multipart series: It illustrated the significant problems in a program intended to help society’s most vulnerable people. (On the day that our story was published, federal agents raided the charity, and Jones is now serving a 10-year prison sentence for corruption and embezzlement). Had our photographer been able to use a drone, the newspaper would have been able to collect clearer images of the house at a fraction of the cost.

Under Rockefeller’s draft legislation, our use of a drone to capture pictures of Jones’s house might have been considered “surveillance of an individual,” requiring us to seek his prior consent (my guess: unlikely).

Moreover, Rockefeller’s bill would require some publishers of information to anonymize and aggregate information collected via drone without prior consent. This is about the most egregious form of First-Amendment violations that you could imagine: government restriction of the publication of information.

For instance, when the Nixon administration sought an injunction preventing The New York Times from publishing the Pentagon Papers, the Supreme Court balked, ruling that the government had not met its “heavy burden” of imposing a prior restraint on speech.

Even when publication might violate individual privacy, courts are loathe to regulate that publication. In 1975, the Supreme Court struck down a damages award against a television station that published the name of a rape-murder victim that was obtained from public court documents. In 1977, the court struck down a state court’s order that prohibited the media from publishing the name or photograph of a juvenile criminal defendant. And in 1989, the Supreme Court struck down a Florida law that imposed penalties for the publication of the names of rape victims. The court held that such penalties are permissible “only when narrowly tailored to a state interest of the highest order” and such an interest was not present in the blanket prohibition on publishing victims’ names.

If the Florida law is unconstitutional, Rockefeller’s proposal surely is. It imposes significant regulations on drone operators across the board, regardless of the nature of the story and the public interest in obtaining the information.

It is unclear exactly how Rockefeller envisions implementing his proposal; the bill provides the FTC with significant authority to develop regulations. Rockefeller appears to anticipate the First-Amendment objections to this bill. The draft instructs the FTC to “consider the protections afforded by the First Amendment to the Constitution of the United States” as it develops its regulations. Unfortunately, such a statement is hollow, because it is impossible to satisfy all of the bill’s requirements without violating the First Amendment. It’s similar to introducing a bill that allows the police to conduct warrantless searches of homes for any reason and including a line that instructs the police to consider the Fourth Amendment.

Rockefeller retired with the start of the new congressional session this week, so the chances of this draft becoming law are nil. But other members of Congress have voiced similar, legitimate concerns about drone-related privacy issues. Hopefully any legislation that they introduce will consider the First Amendment and the public interest in a free press.

photo credit: energylabsbr via photopin cc