Bird's-eye View: a Comparative Examination of Drone Regulation Through the Lens of Privacy Protection

• Publication year: 2021

Bird's-Eye View: A Comparative Examination of Drone Regulation Through the Lens of Privacy Protection

Allison McGregor^*

[Page 129]

Table of Contents

I. Introduction.......................................................................................130

II. Background Laws and Regulations............................................131

A. United States Privacy Law..................................................131
B. European Union Privacy Law............................................135
C. Commercial Drone Regulations in the United States.........138
D. Commercial Drone Regulations in the European Union ... 140

III. Analysis............................................................................................142

A. Lack of United States Regulation and Usage.....................142
B. Drone Privacy Right Infringement......................................143
C. United States Data Privacy................................................143

IV. Proposal for New United States Drone Privacy Regulation.................................................................................147

A. Congress Should Create a Federal Regulation Governing United States' Commercial Drone Usage and Privacy Concerns............................................................................147
B. Congress Should Regulate Drone Privacy to Protect Against Data Privacy Infringement................................................151

V. Conclusion.........................................................................................156

[Page 130]

I. Introduction

A drone's technological advances far exceed the laws that govern it, leaving the privacy of citizens uncertain. Within the last five years, the market for drones has skyrocketed worldwide, opening up doors for major companies such as Amazon and DHL, who have been working on a new delivery system that would put the typical car delivery services to shame.¹ Drones also provide aerial imagery services, infrastructure inspection, mapping and surveying of construction sites, and agricultural services for locating and identifying crop diseases.² According to Unmanned Aircraft System (UAS) attorney, Kris Graham, "drones are on pace to change society as pervasively as mobile phones and the Internet."³

Yet, the drone's technological advancements challenge certain well-established rights that many people in countries like the United States and those in the European Union take for granted, particularly the right to privacy. The level of protection the law affords privacy rights turns on how privacy is defined. For example, in the context of drone regulation, a drone trespassing on one's land and a drone collecting personal information involves two distinct areas of privacy law in the United States.⁴

This Note compares drone regulations in the United States (U.S.) and the European Union (EU), showing that history and the legal definition of privacy in the EU has allowed the EU to directly implement privacy protections into drone regulations. The EU's treatment of privacy has allowed for a more transparent and forward-looking legal structure for commercial drone companies. The United States' tendency to treat privacy law as an intrusion into physical spaces, rather than as an inherent infringement on one's personal information, has hampered the U.S. government's ability to address drone privacy regulation.

This Note will first lay out the basis of privacy law in each region. It will explain the privacy rules and analyze the reasoning behind these rules. Additionally, this Note will describe current drone regulations in each region: the lack of regulations in the U.S. and the rules in the EU, effective January 1, 2021. This

[Page 131]

Note will then show why the U.S. is struggling to regulate drones in a holistic way that protects against various privacy issues and why the EU is able to more efficiently transition to effectively protect privacy in this technological age. Finally, this Note provides suggestions to how, given current property laws, the U.S. can attempt to regulate drone usage in a way that not only protects the right to privacy but also promotes commercial development.

II. Background Laws and Regulations

A. United States Privacy Law

Privacy protection is a highly valued, well-established right in U.S. legal history. The idea of privacy appears in a variety of sources, from the Second Restatement of Torts preventing trespass,⁵ to Fourth Amendment protection from government invasion,⁶ to the protection of data privacy.⁷ "Privacy is protected in the US by means of a patchwork quilt made up of common law, federal legislation, the US Constitution, state law, and certain state constitutions."⁸ The varying definitions of privacy and the underlying principles that back these laws create a divergence in how the law can protect privacy rights.

In 1890, Samuel D. Warren and Louis D. Brandeis were the first to convey the idea of privacy in a Law Review article.⁹ They described privacy protection more generally, in the sense that privacy laws protected one's "thoughts, sentiments, and emotions."¹⁰ Their idea of protecting privacy involved preventing the media from taking personal information.¹¹ Warren and Brandeis focused primarily on what is known in the U.S. today as a "right to personality."¹² They believed that the common law already protected privacy in term's of one's home.¹³ The two

[Page 132]

essentially summed up privacy as the "right to be let alone."¹⁴ U.S. law appeared to generally accept and appreciate the right to be let alone, but given its incompatibility with the First Amendment right to free speech, U.S. law never officially accepted this idea.¹⁵ Thus, U.S. law refrained from accepting a specific, formal definition of privacy until the 1960s, when William Prosser wrote a Law Review article defining privacy in a way that endorsed America's views on the right to be let alone.¹⁶

Prosser's definition of privacy divided privacy rights into four distinct categories of torts to encapsulate the right to be let alone in a way acceptable under U.S. law.¹⁷ The four torts regarding breach of privacy include: (1) intrusion upon seclusion,¹⁸ (2) public disclosure of embarrassing private facts,¹⁹ (3) false light publicity,²⁰ and (4) appropriation of name or likeness.²¹ Prosser's article placed Warren & Brandeis's idea of privacy into the second tort category, public disclosure of embarrassing or private facts.²² The first tort category—intrusion upon seclusion—reflects the basis for how Americans think about privacy in other areas of the law.²³ The privacy of one's physical space or things, generally relating back to physical property, still receives the strongest protection in privacy tort claims and privacy claims generally.²⁴

The development of case law under each of these four torts has differed dramatically. For example, the right against public disclosure is one of the most highly praised privacy protections in U.S. tort law.²⁵ Yet, it provides the individual a relatively small about of protection. For example, in public disclosure cases, defendants almost always win because they only have to prove that the information was either already disclosed or that the public disclosure of such

[Page 133]

information was not highly offensive.²⁶ While this right against public disclosure has received more focus in recent years, its protection varies from state to state and is highly volatile in who it protects.²⁷ On the other hand, "intrusion upon seclusion," which encompasses the idea of physical trespass, is highly protected and enforced.²⁸ The law against trespass gives individuals "an almost absolute right to exclude others from [their] property."²⁹ From the Restatement (Second) of Torts regarding "intrusion upon seclusion," states have adopted laws mainly aimed at protecting against physical intrusion.³⁰

The Court has long defined privacy protections under the Constitution as protecting against intrusion into physical spaces. For example, the Fourth Amendment includes a right to be free from unwarranted government searches and seizures.³¹ Historically, the right to privacy under the Fourth Amendment keeps the government off of one's property and out of one's home.³² Over time, the Court attempted to shift the idea of privacy from protecting one's property to protecting one's reasonable expectation of privacy, but the need for a physical barrier continually limits this transition. For example, in Katz v. United States the Court diverged from the idea of physical trespass, stating, "the Fourth Amendment protects people, not places."³³ The plurality concluded that the Fourth Amendment applies whenever a person exhibits an "actual . . . expectation of privacy" that "society is prepared to recognize as 'reasonable.'"³⁴

After Katz, the Court seemed to move toward protecting privacy in the technological era, yet the idea of spatial privacy came back in full force in United States v. Jones.³⁵ When Jones argued that putting a Global Positioning System (GPS) tracker on his car violated the Fourth Amendment, the Government argued that Katz warranted the search because there was no reasonable expectation of privacy on the open road.³⁶ The Supreme Court, however, disagreed. Applying a historical analysis, the Court considered the GPS installation onto Jones' vehicle as a physical intrusion. Thus, the Court held that the Government conducted an

[Page 134]

unwarranted search under the Fourth Amendment.³⁷ It follows that while the Court has attempted to enter into the world of viewing privacy protections as one's reasonable "expectation of privacy," the physical invasion rule remains the predominant view on Fourth Amendment privacy protections.³⁸

The Supreme Court not only defines the Fourth Amendment protection as a physical one; the Court defines the rights of the Fourteenth Amendment in a similar manner.³⁹ The Supreme Court focused on spatial boundaries, specifically the marital...