Well the new drone laws are here, and having been in
effect for a week it’s nice to have all the kinks worked out. Just kidding.
Obviously no one could really expect
the FAA to solve all the problems and headaches that come with the power of
drones with just one rule. But the new rule still comes with baggage. Not least
of which is privacy.
On
August 29 the FAA’s rule regarding the operation of small unmanned aircraft
systems (UAS) went into effect. While previously small UAS operators could only
fly with a “section 333” permit, they can no fly freely—that is, so long as
they’re operated by an authorized pilot, and not operating over people or beyond
the pilot’s eyesight.
The
FAA’s new rules have an eye towards privacy, including a collective
commitment by the UAS industry to initiate educational efforts around privacy best
practices. Additionally, the rules specifically outline privacy protocols now
in place: flights over people (forbidden unless those people are in a covered
structure or a stationary covered vehicle); visual line of sight (operators
must be capable of seeing the UAS unaided by any device aside from corrective
lenses); and night operations (generally prohibited without a special waiver).
Coupled with the patchwork of more local laws on peeping toms, trespassing, and
so forth, the landscape for privacy surrounding drones has some shape at least.
Even still, however, many think the FAA punted the
privacy issue a bit, as Lisa
Ellman and Jared
Bombergwrote
on the Chronicle of
Data Protection:
The
rule does not include privacy-specific standards, and the FAA unequivocally
stated that it lacks the authority to regulate the privacy aspects of drone
operations. One privacy advocacy group, the Electronic Privacy
Information Center, is challenging the FAA’s decision, arguing that it was
unlawful for the agency to choose not to create drone privacy standards.
…While these requirements in the FAA’s new rule have clear privacy implications that provide a certain level of protection from the use of drones for invasive purposes, privacy advocates have expressed concern about many aspects of drone privacy that remain unregulated. For instance, nonparticipating persons are not necessarily given notice of nearby drone activity. Also, people may be unable to determine who is flying the aircraft or not know how to stop the use of such aircraft if they believe their privacy is violated.
The
real question is, how much power can the FAA truly wield here anyway? According
to The AP, that’s just one more question that’s bound to work
itself all the way to the Supreme Court:
As more
hobbyists use drones for fun and businesses start deploying them for
deliveries, real estate photography, crop monitoring and other uses, the sky’s
the limit for litigation, according to lawyers who follow drone issues.
The limits
of the sky, in fact, are one area that’s ripe for court review. FAA officials
have said that the agency has jurisdiction over all navigable airspace, which
in the case of smaller drones goes down to the ground. Lawyers say that
property owners, state and local governments, and businesses that want to use
drones are likely to take issue with the federal government’s stance.
“The biggest thing I see coming that will eventually have to be decided by the Supreme Court is … how much of the airspace over the property do you own,” said Loretta Alkalay, a former FAA attorney who consults on drone issues and teaches drone law at Vaughn College of Aeronautics in Queens, New York. “The idea of what constitutes trespass and ownership is going to be a huge area.”
So far
the law is stretching to see if the non-drone specific laws can properly
safeguard the public. But even with technology-neutral laws that address things
like stalking, trespassing, or any other drone nightmares, a drone hovering in
the sky, potentially outside your home, is not a common enough occurrence yet
for the average layperson to not feel suspicious. And so far the new safeguards
are, for the foreseeable future, relatively fragmented and confusing.
There
are some federal and state legislators taking steps towards a more national
drone privacy regulation. As Ellman and Bloomberg touch on later, Senator Ed
Markey and Congressman Peter Welch introduced legislation that would require
all drone licenses to be made publicly available, with disclosed operator, area
of operation, data collected, and if that data will be transferred to third
parties. It would be a start to marrying the miscellany of local laws and
ordinances specifically related to drone privacy.
Whether
it’ll be enough? Well it sounds like that might be a job for the courts to
decide.
No comments:
Post a Comment