|Privacy, Data Protection and Security|
|Tuesday, 12 April 2016 13:48|
By: Cara Di Silvio
Recently, there has been a steady increase in news coverage of anything and everything drone. Headlines claiming an overlap in regulations and questions of necessity of legislation have sparked an interest among consumers, civilians and government-related communities alike.
The debate over airspace control has been brought up on the Senate floor as lawmakers look into the scope of consumer drone regulation. However Congress has decided to postpone any decision on FAA Reauthorization proposals until later this summer. Unmanned aircraft technology and consumer use has evolved immensely over a short span of time. These infinitely fast changes have reached a point in regulatory law, in which guidelines are now necessary as we are faced with safety and privacy concerns.
With estimates of nearly 400,000 Unmanned Aircraft Systems (“UAS”) registered with the FAA since December of last year, it seems that lawmakers are now going to have to address the situation head on.1
In 2012, the FAA was instructed by the Congress to create guidelines regulating drone operations in national airspace.2 For the most part the FAA has gone unchallenged as the governing body of air transportation mainly because boundaries and state lines don’t exist past a certain altitude making federal control over airspace logical.
However, more specifications describing the authoritative parameters will be necessary as a number of conflicting regulations have been passed on both the State and Federal level. Last year, 45 states debated 168 drone bills and 20 states passed at least 26 pieces of legislation related to civilian drone use.3
In May 2015, Sen. Cory Booker (NJ) introduced to the Senate the Commercial UAS Modernization Act (S.1314), addressing the extent to which the FAA can regulate Unmanned Aircraft Systems. The bill, which is currently under review, aims to amend the previous FAA Modernization and Reform Act of 2012 so that drone owners will be able to operate without an airworthiness certificate, currently outlined by the FAA’s notice of proposed rule making published in February 2015.4
The Commercial UAS Modernization Act is still in the works following the approval of legislation in February, which establishes an independent group outside of the federal government to update current air traffic control systems. The Aviation Innovation, Reform, and Reauthorization (AIRR) Act (HR.4441) also reaffirms the FAA’s authority as the nation’s aviation safety regulator. Critics of the AIRR Act point out that provisions of the current text would thwart potential innovation and expansion of drone technology by prohibiting flight of any drone made by unapproved manufacturers.5
As these various regulations and proposals overlap, control over airways, however, is typically a safety concern and does not include protection of an individuals’ privacy. In 2015, the majority of State laws and regulations passed pertained to privacy, gaming, and use by law enforcement.
Technology expansion, interstate commerce and airway safety, as important as they are, remain far less complicated than the underlying struggle between federal and state authority over the protection of an individuals’ privacy. The protection and comfort once associated with private property are now threatened by the possibility of low-flying drones capable of surveying and transmitting image and video content.
Historically, privacy and aerial surveillance laws have been largely a State issue. Statutory and Common Law protections against non-governmental intrusions, wiretap laws preventing the recording of images and/or conversations without both parties consent, and Peeping Tom and anti-voyeurism laws have been largely the responsibility of State governments.
Privacy protection in this sense is dependent on the law of that land which determine to what extent privacy is protected and enforced. States do not have a uniform definition of privacy nor do they have a uniform disciplinary action should privacy be encroached upon. These variations have raised concerns amongst the UAS community as drone operation is not restricted by State lines. Creating a successful nation-wide privacy protection policy would require extensive research and testing making it more than a long term solution.
Instead of prematurely assigning authority to one governing body or another, potentially dismantling all current privacy protection laws which have been established over hundreds of years of litigation, we should consider a more balanced approach and make adjustments as concerns present themselves. States are already addressing related matters in local courts and legislation, and through trial and error, successful policies will develop. Over time, once nation-wide information is available, we will be able to pick out location specific factors and see the universally applicable details.