What the rise of domestic drones means for privacy

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Background photo taken and permission granted by Nick Valdez.

Technology’s evolution moves at a fairly exponential rate. Contrast this with the American government, an institution known for its gridlocked, snail’s pace. The two move at differing speeds yet both hold tremendous implications for the other.

Technological progress is a game of pros and cons and ideally, legislation does its best to optimize the benefits to society while minimizing the costs.

However, it’s often hard to know what lines should be drawn and where. Unmanned aerial vehicles, or drones, are a good example of this.

Use of the sleek, contemporary devices we recognize as drones first took off during the War in Afghanistan in 2001, after the attacks on September 11. Picture the smooth, missile-like devices cruising over foreign, windswept deserts that might appear on a cover of National Geographic.

Around this time, drones were complex and expensive, and therefore only really available or utilized by the military. Since then, however, the computers and cameras inside the devices have significantly improved.

In turn, there has been a proliferation of affordable domestic drones in the United States.

Most unmanned aerial vehicles are neat, user-friendly devices that grant even the casual flyer a newfound accessibility to the skies above them. Indeed, there’s certainly something freeing about navigating the clouds, even if it is just to observe your neighborhood shopping mall from above.

According to a Roper poll, as of December 2015, there were 1.6 million recreational drones flying around the United States.

Yet, having so many new eyes above rightfully raises some interesting questions about privacy.

In particular, privacy advocates highlight the potential for abuse of law enforcement. Though the aerial view undeniably has advantages, affordable drones raise the debate of what on the ground can and should be monitored.

These days, drones are no longer just limited to tactical measures overseas, since the devices are cheaper, lighter, and easier to use.

Currently, hobby drones can be found perusing above neighborhoods, beaches, and parks, snagging aerial shots all across the United States. For instance, both casual pilots and professional vloggers alike, such Casey Neistat, who has just under six million YouTube subscribers, can use the gadgets to cruise above the evening waves of San Francisco.

Yet, drones have practical uses beyond exploration and photography. Nick Valdez is an enthusiast who lives in San Diego, California, a prime destination for drone footage. 

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Pismo Beach, San Diego. Photo taken and permission granted by Nick Valdez.

He initially picked up his DJI Phantom 4 for casual enjoyment but began to take his piloting more seriously when he researched the emerging opportunities for drones. He discusses all the possible applications for a skilled pilot.

“Agriculture, real estate photography, construction mapping, terrain modeling, you name it,” Valdez explains.

Valdez estimates that as drones improve, they’re also becoming more and more industrialized. Consequently, somebody needs to fly them.

Agriculture, like Valdez mentions, is an industry that stands to greatly benefit from cheaper, stronger drones.

According to the journal ScienceDirect , in the coming years, industry special interests predict that 80% of domestic sales of the devices in the United States will be for agriculture. Among other things, drones could streamline irrigation, crop monitoring, and disease detection.

On the commerce side of things, Amazon has announced the early workings of Prime Air, a program that will someday deliver goods to a member’s doorstep in just 30 minutes via drone.

Similarly, this November, Domino’s was the first in the world to deliver a pizza with a drone, flying two pies to a customer in Whangaparaoa, New Zealand.

The view also obviously offers distinct advantages when it comes to public safety and law enforcement. Police drones have already shown to be of tremendous help.

A standard police helicopter can cost up to $1 million – drones can serve as a quieter, price efficient, and more agile alternative. Unmanned aerial vehicles can also carry radios and cameras capable of scanning license plates and thermal imaging.

In 2009, a drone named the WASP was used to apprehend a drug and arms dealer in Texas. Another arrest was aided by a Predator drone in 2011 in North Dakota.

However, the devices aren’t just used for apprehension. Drones have been used to monitor the American-Mexican border since early 2005 by border officials.

According to the General Assembly and Scientific Symposium journal, the increased aerial mobility has also opened up doors for disaster squads to deliver supplies and identify stranded individuals during times of emergency.

Still, skeptics question whether the federal government should send out drones en masse quite yet.

In order to better understand the implications that drones have for privacy, it helps to have a little background information.

The privacy of the American people is protected by the 4th Amendment of the Constitution, which grants citizens freedom from unreasonable searches and breaches based on the standard of a “reasonable expectation of privacy”.

Now, this reasonable expectation varies and the final conclusion is often up to the judicial system, though the courts typically rule in favor of the citizen.

Take, for instance, two cases outlined in a journal by Ann Cavoukian, Canada’s former Information and Privacy Commissioner.

In a 2001 case, the United States Supreme Court ruled a man could not be prosecuted based on data collected from within his home by police via thermal imaging. This is because thermal imaging technology is not readily available to the public and furthermore, within the confines of his home, he had a reasonable expectation of privacy.

However, contrast this with a man who was caught growing marijuana in his backyard in 1986. He was initially prosecuted since the plants were growing much taller than his surrounding fence. Because the pot plants were clearly visible to even casual observers, the courts allowed law enforcement to continue with his prosecution.

For the skies, the rules are also pretty nuanced. Regulation is managed by the Federal Aviation Administration.

Before airplanes, the assumption was an individual owned the airspace above their land to even the heavens but now that humans are in the air pretty regularly, such a ruling isn’t practical. Currently, landowners own whatever airspace above their property that they currently occupy or use.

Derigan Silver is an associate professor in the Media, Film, and Journalism school at the University of Denver who specializes in government secrecy, civil liberties, and Internet law.

According to Silver, when it comes to drones, at least in most spaces, there isn’t actually much of an expectation of privacy. Like with airplanes, most airspace is fair game.

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Homecoming. Photo taken and permission granted by Nick Valdez.

Still, he says current legislation is surprisingly undeveloped and inconsistent.

Essentially, regulation for the typical hobbyist simply means drone users simply have to register their devices with the FAA. Law enforcement, on the other hand, just needs to be granted a warrant by the FAA if they seek to utilize the devices.

Still, advocates of individual privacy think further measures for government drones are necessary.

Those who voice such concerns point to the scandal with the National Security Association, unveiled by whistleblower Edward Snowden, in which millions of Americans unknowingly had their cellphones and laptops unknowingly tapped and monitored.

This was all done supposedly in the interest of national security. Privacy proponents argue that after such a violation of American privacy, it’s not unreasonable to fear drones will be used in a similar manner.

A recent public opinion poll surveyed 1,000 American adults on their thoughts if their local police departments started utilizing drones. 40 percent said they’d be very concerned and 20 percent said they’d be somewhat concerned, while the rest said it likely wouldn’t bother them.

Jeremy Salo is a typical sophomore at the University of Denver studying game design. He’s interested in the relationship between humans and technology. He is also one of the millions of regular citizens whose livelihood stands to be affected by drone usage.

Salo understands the advantages drones offer but holds trepidation for government use. For instance, he supports law enforcement requiring warrants for drone usage. In day-to-day police activity, he thinks drones might be a bad idea.

 

“It seems far-fetched but I don’t want to live in a panopticon. I don’t think passively it’s a good idea.” Salo explains, chuckling.

 

Largely, privacy advocates are more worried about unnecessary or even mass surveillance by the government and law enforcement, rather than drones on a private level.

Salo highlights that at an individual level, there are cheaper, more effective methods of snooping on your neighbors.

Furthermore, like discussed by Silver, so far, most drones are used by enthusiasts in public, open airspaces where there isn’t a reasonable expectation of privacy. This is much like a photographer would take pictures at a beach or park.

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Cardiff Beach, San Diego. Photo taken and permission granted by Nick Valdez.

Yet, larger government agencies, like police departments, have the means to roll out drones in force, which would pose a greater threat to individual privacy.

Silver agrees.

He thinks, at least on the private side of things, reasonable legislation will be developed. Like with telephoto lenses and infrared cameras, Silver says that the law will advance.

Over time, norms will unfold, the reasonable expectation of privacy will be better solidified, and the legislation is likely to catch up.

“Privately, the legal system may be slow but it’ll catch up with drone evolution.” Silver says.

He does, however, understand the concern for excessive surveillance by government officials. This goes back to the idea of preemptive measures being a better safeguard privacy than after-the-fact regulation of law enforcement.

As drones become more commonplace, it’s worth considering the precedent that could be set in the coming years. Because current legislation is fairly undeveloped, privacy advocates are concerned about what standards could be erected if law enforcement vamped up their drone usage before regulation is set in place.

For police, former Canadian commissioner Cavoukian suggests potential regulation including warrants, disclosure of why a drone is needed, and specifically what information is being gathered.

 

Silver says that the issue is alsopartly just a matter of time, as technology evolves and the issue of drones is further examined. He says that in many ways, it’s difficult to say in the immediate term.

According to Silver, it’s worth considering the cons of police drone usage but he also warns against hasty, sloppy legislation.

“It’s probably going to take time to figure out how we’re going to approach this practically,” Silver says summarily.

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