Drone Surveillance: The Faa's Obligation to Respond to the Privacy Risks

By Scott, Jeramie D. | Fordham Urban Law Journal, July 2017 | Go to article overview

Drone Surveillance: The Faa's Obligation to Respond to the Privacy Risks


Scott, Jeramie D., Fordham Urban Law Journal


Introduction                                                      767   I. FAA Modernization Act                                        769     A. The FAA and the Petition for a Drone Privacy        Rulemaking                                                 771     B. The FAA, Drones, and Privacy                               772     C. EPIC v. FAA                                                775 II. Privacy Issues                                                776 III. Lack of Legal Protections                                    778     A. Fourth Amendment Law, Drones, and Aerial        Surveillance                                               780     B. The Third Party Doctrine and Drone Surveillance            782 IV. Potential Market for Drone Data Collection                    785 V. Importance of Privacy in Public                                787 VI. Why the FAA Should Regulate Drones                            789     A. Privacy Must be Addressed to Safely Integrate Drones        into the National Airspace                                 789     B. The FAA Modernization Act Requires the FAA to        Address Privacy Issues                                     790 Conclusion                                                        792 

INTRODUCTION

Imagine a scenario not too far off in the future where drones in the sky are a regular occurrence over densely populated urban areas. These drones do not need to be in the line of sight of an operator and do not need to be actively operated at all as they fly around autonomously. Some of the drones you can see but more are present then the eye can discern. Some are flying too high to see and are too quiet to hear.

The drones constantly flying overhead are delivering packages, transporting people, monitoring traffic, checking infrastructure, providing building security, and monitoring the environment. You know that the drones carry all sorts of high-tech equipment. But you do not know exactly what technology is on the drone, what the surveillance capabilities are, what information these drones could be collecting about you and anyone else who happens to be in a public space, or how this information could be used or to whom the information could be disclosed. Going into public essentially means giving up your privacy in a way never imagined before with little to no say in the matter. To maintain any semblance of privacy in public requires extraordinary efforts that limit your ability to participate in modern society. You do not carry your smartphone or any other mobile device that connects to the internet, (1) you wear a hood and special tinted glasses to thwart ear, (2) iris, (3) and facial recognition, (4) and you randomize your gait. (5) You also wear gloves to prevent the capture of your fingerprints, (6) avoid driving your own car, (7) and avoid using the new self-driving/flying drone cars (8)--you stick to walking, biking, or mass public transportation.

The description above sounds a lot like the beginning of a dystopian novel, but it is the current track we are on as drones are being integrated into the National Airspace with no privacy protections for public space. In 2012, the Federal Aviation Administration ("FAA") was tasked by Congress with integrating drones into the National Airspace. Five years later, the agency is still working on domestic drone integration but refuses to address privacy as the agency works to establish safety rules for drones despite identifying privacy as an important issue to address as drones are integrated into the National Airspace. (9)

Part I of this Article discusses the FAA Modernization and Reform Act of 2012. The subsections of this Part will discuss some of the relevant details of the Act, the petition of the FAA to address drone privacy after the Act was passed, and the FAA's changing relationship with privacy. Part II highlights the privacy issues created by the integration of drones. …

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