Imagine if the government imposed harsh regulations that effectively prohibited the use of all cameras and recording devices on the theory that they might be used to violate individual privacy.
Sounds absurd, right? Even though the regulations might prevent a few egregious privacy violations, they would prevent many more legitimate uses, such as family photographs, videos of sports games and reporting on breaking news. As an economist might say, the costs of the regulation would far outweigh the benefits.
Unfortunately, there is a chance that we are headed down a path toward overregulation of a promising new technology: drones. As a former journalist, I see the tremendous value that drones present for news-gathering, particularly reporting on emergency situations like forest fires and floods. Unfortunately, most of the recent public attention has focused on potential privacy violations rather than the tremendous potential benefits for journalism and the public.
In recent weeks, there have been calls for the government to regulate drones, based on hypothetical uses that could violate individual privacy. Last Wednesday, Politico reported that U.S. President Barack Obama plans to issue an executive order directing the National Telecommunications and Information Administration to develop voluntary privacy guidelines for the commercial use of drones.
The next day, Sen. Ed Markey (D-MA) and Rep. Peter Welch (D-VT) wrote a letter to President Obama, asserting that “the federal government should put in place strong, enforceable rules—not voluntary best practices—that protect the privacy rights of American citizens.” Markey and Welch acknowledged that most drone users would be “good actors,” but they “worry about the worst offenders who will take the opportunity to act unrestricted and ignore any voluntary guidelines.”
Markey and Welch raise valid concerns, and both industry and policy-makers should work to ensure that individuals are protected from egregious privacy violations. But this protection would be stronger if it were technology agnostic; if we focus all of our efforts on drones, how do we address the next generation of technology?
Past experience has shown that reactionary privacy laws that focus on a specific technology do not stand the test of time. Consider the Video Privacy Protection Act (VPPA), which Congress passed in 1988 in response to a video rental store’s disclosure of Supreme Court nominee Robert Bork’s rental records. Although well-intentioned, the bill clearly was designed for the VHS era, covering information about the rental of “prerecorded video cassette tapes or similar audio-visual material.” Two decades later, it was unclear how this law applied to streaming video or social media. Congress amended the statute to address these technologies, but it is unclear whether the amended VPPA would cover new distribution mechanisms that emerge in the next few decades. Congress always will be playing catch-up.
As policy-makers consider whether to regulate drones, I hope they first will examine whether existing laws already address the privacy concerns. As I explained in a February article for The Privacy Advisor, common-law torts such as intrusion upon seclusion, public disclosure of private facts, trespass and nuisance already may deter drone operators from violating individuals’ privacy.
I also hope that policy-makers focus not only on the potential privacy violations but on the very real public benefits of drones. To get a sense of the wide range of potential news-gathering uses for drones, I visit the excellent website of the Drone Journalism Lab at the University of Nebraska-Lincoln's College of Journalism and Mass Communications, which has documented the uses of drones for news-gathering. Among the recent journalism that has taken advantage of drones:
- Video that documents the damage caused by the typhoon in the Philippines
- A close-up view of a massive protest rally in Thailand that would have been impossible with traditional photojournalism techniques
- Footage of widespread damage caused by fire in the United Kingdom
- Breathtaking video of the dedication of a high school football field in California
Quite simply, drones are a new tool that could vastly expand opportunities for news-gathering, just as the camera, video-recorder and Internet have done over the years. Overregulating a nascent technology could deprive the public of these very real benefits. Indeed, unreasonable restrictions on news-gathering could raise legitimate First Amendment objections.
By mentioning these news-gathering possibilities and First Amendment concerns, I do not intend to minimize the privacy interests that some legislators and consumer groups have raised. But when policy-makers decide whether to regulate the use of drones to collect information, they should consider the very real public benefits that drones present.
Instead of focusing on the specific types of technology that might be used to violate privacy, policy-makers would be better served to consider the privacy violations that they hope to prevent. Otherwise, their efforts will end up in the dustbin of history, next to Robert Bork’s VHS tapes.
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