A looming threat
Mar 19th 2015, 22:32 BY K.K. | WASHINGTON, DCThe proliferation of drones—which include both small fixed-wing aircraft and small rotorcraft with multiple propellers—raises some vexing public-policy questions. In an effort to safely integrate drones of all sizes into American airspace, the Federal Aviation Administration (FAA) is now figuring out how to regulate the small ones (ie, less than 55 pounds). As drones acquire so-called “sense and avoid” technology to automatically avoid collisions, the FAA and the aviation industry more broadly must parse thorny questions about how to either prevent accidents involving flying robots or assign liability in the inevitable event of one.
But questions of air safety are relatively straightforward compared to another broad set of concerns that drones raise: how do they impact privacy? At issue is the way some drones can loiter overhead for long stretches, engaging in what is called “persistent surveillance”. As drones—and other airborne surveillance platforms, such as circling manned aircraftand lighter-than-air craft—become cheaper and more effective, persistent aerial surveillance could become the norm, and no privacy or transparency measures currently exist in the law. So figuring out how to protect privacy without pre-empting innovation is as tricky as it is necessary. On February 15th, the same day the FAA announced its new proposed rules for small drones, Barack Obama published a memorandum calling on government agencies to study the matter. The president also called on an agency in the Commerce Department to examine the privacy implications of drones used by individuals and corporations.
The current state of the law—both legislation and court decisions—is poorly suited to deal with persistent surveillance. This is because privacy law is tailored to questions of whether one is in public—an open field—or in a space where one has a “reasonable expectation of privacy”. The Supreme Court has, at times, expanded such spaces, for instance finding in 1967 that the FBI cannot eavesdrop on conversations in telephone booths without a warrant. But in this era of “big data”, the line between public and private can no longer be delimited by physical boundaries.
Complicating matters, there is no clear line between episodic surveillance—a snapshot—and persistent surveillance, even though the effects are profoundly different. As Justice Sonia Sotomayor pointed out in a 2012 case, incremental observations by the government may not violate a person’s privacy, but the sum total do. It’s the difference between a snapshot and an overhead video that shows the comings and goings of everybody in a city over the course of a week. In such a video, a so-called “pattern-of-life” emerges. Any still frame from the video might be a defensible incursion on privacy, yet the whole video is something more than the sum of these parts.
What are the dangers of such videos? Plenty of similar information is available from mobile-phone records, which track the physical position of their users. Indeed, many technologies, from mobile telephony to e-mail, have been widely adopted before their impacts on privacy could be parsed by either consumers or regulators. But therein lies the value of regulating drones. As Ryan Calo, a University of Washington law professor, optimistically suggests, drones may serve as a “privacy catalyst”. Once regulators assess the ramifications of persistent aerial surveillance, he argues, they may then turn to the privacy implications of a whole host of other gadgets and innovations.
Discussions about privacy often involve the question of why it is something worth protecting. People tend to invoke Louis Brandeis and Samuel Warren’s definition of privacy in 1890 as the “right to be let alone”. But this view does not fully capture the purpose of privacy in modern society. A better explanation comes from Julie Cohen at the Georgetown Law School, who argues that “the liberal self and the liberal democratic society are symbiotic ideals.” So persistent surveillance—whether through monitoring internet browsing habits or from a drone overhead—undermines the formation of liberal individuals in the way that an over-reliance on GPS undermines the formation of a sense of direction. This is because pervasive surveillance tends to shape the actions, thoughts and personalities of those being observed. Such changes happen gradually, even imperceptibly. But ultimately excessive surveillance encourages people to behave predictably. To oversimplify her argument, democracy needs privacy to breathe.
It is worth noting that not all persistent drones are a threat to privacy—NASA’s Global Hawk Earth science missions, for instance, are exactly what they claim to be: new tools for studying hurricanes and other natural phenomena. But it is essential that these questions about drones and privacy are being asked now. This is because the “reasonable expectation of privacy” test depends on whether technologies are already widely adopted. If no restrictions are put in place and persistent drones become more common, then the legal system allows the fait accompli to stand.
It is unclear whether Mr Obama is serious about addressing the privacy concerns raised by drones. His February memorandum had large carve-outs for “law enforcement or national security” that could undermine his attempts to address “privacy, civil rights, and civil liberties concerns”. However, if he is serious, restrictions on persistent surveillance would be a fine place to start.
