Observations from above: unmanned aircraft systems and privacy.

• Author: Villasenor, John
• Position: Introduction through II. Regulatory Framework, p. 457-475 - Privacy, Security, and Human Dignity in the Digital Age

INTRODUCTION I. UNMANNED AIRCRAFT SYSTEMS TECHNOLOGY A. Historical Context: The Nineteenth and Twentieth Centuries B. Unmanned Aircraft Systems Today II. REGULATORY FRAMEWORK A. The Federal Aviation Administration B. The FAA and Unmanned Aircraft Systems C. The Impact of Safety Regulations on Privacy III. GOVERNMENT UNMANNED AIRCRAFT AND THE FOURTH AMENDMENT A. Dow Chemical Co. v. United States B. California v. Ciraolo C. Florida v. Riley D. Kyllo v. United States E. United States v. Jones F. Privacy and Unmanned Aircraft Systems in Light of Supreme Court Jurisprudence 1. Technology in "General Public Use". 2. "Public Navigable Airspace". 3. The Role of Imaging Technology 4. Extended Surveillance Using Unmanned Aircraft in Light of Jones 5. Residual Privacy Rights When a Warrant Is Obtained? IV. NON-GOVERNMENT UNMANNED AIRCRAFT AND THE FIRST AMENDMENT A. Trespassing B. Invasion of Privacy 1. Intrusion Upon Seclusion 2. Publication of Private Facts C. Stalking and Harassment D. Unmanned Aircraft and Business Privacy V. NEW FRAMEWORKS FOR UNMANNED AIRCRAFT SYSTEMS AND PRIVACY A. Voluntary Approaches B. Federal Legislation C. State and Local Legislation and the Scope of Federal Preemption CONCLUSION INTRODUCTION

Military aviation experts and model airplane hobbyists have known for decades that an airplane can be flown without a human in the cockpit. Until very recently, however, for most people the very concept of an aircraft was inextricably tied to that of the pilot it was presumed to carry. In the long run, that may turn out to be a historical aberration.

"Drones"--more accurately, unmanned aircraft--will dominate the future of aviation as thoroughly as manned aircraft have dominated its past. In the military the transition is well under way. In 2012, the United States military had close to 6,300 unmanned aircraft systems (UAS) (1) and is training hundreds of new pilots each year to fly them. (2) Civilian UAS use in the United States is also set to grow rapidly in the wake of a law enacted in February 2012 providing for the integration of unmanned aircraft into the national airspace over the next several years. (3)

UAS can be employed in an endless variety of civilian applications, the overwhelming majority of them beneficial. They can be used, for example, to help rescuers identify people in need of assistance following a natural disaster, or to provide vital overhead imagery to police officers attempting to defuse a hostage standoff. In the commercial world, UAS will be increasingly employed for tasks as diverse as surveying, crop spraying, and traffic congestion monitoring. Scientific applications include air quality assessment, wildlife tracking, and measuring the internal dynamics of violent storms. UAS will also generate a number of economic benefits, both by creating jobs that involve the design and production of UAS and by spurring advances in robotics that will apply well beyond aviation, in fields ranging from manufacturing to surgery.

However, like any technology, UAS can be misused. The most common concern regarding domestic UAS relates to their potential impact on privacy. This is a legitimate concern. Existing laws and jurisprudence provide an important foundation, but they also leave many questions unanswered. And although in some respects UAS simply represent one more manifestation of the always complex intersection between technology and privacy, they are also unique in making it possible, for the first time ever, to easily and inexpensively obtain observations from above.

As Justice Samuel Alito wrote in a concurrence in United States v. Jones, the January 2012 Supreme Court ruling that addressed the constitutionality of affixing a GPS tracking device to a vehicle without a valid warrant, "[i]n the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical." (4) Although Justice Alito's statement was directed toward GPS tracking, it has direct relevance to UAS. In comparison with manned aircraft, UAS can be very inexpensive to procure and operate. As the practical barriers to obtaining aerial imagery fall away, the resulting privacy issues take on heightened importance.

This Article considers the constitutional, statutory, and common law frameworks that will inform privacy rights with respect to observations from unmanned aircraft. (5) The potential privacy challenges raised by unmanned aircraft are direct consequences of their capabilities and of the rules governing the manner in which they can be flown. Accordingly, Part I provides the historical context for UAS technology and describes the range of platforms available today. Part II addresses the current regulatory environment in the United States, with particular attention to those provisions of the FAA Modernization and Reform Act of 2012 (FMRA) that relate to UAS.

Part III discusses government operation of unmanned aircraft in light of the Supreme Court's Fourth Amendment jurisprudence. Although the Supreme Court has never specifically ruled on the question of UAS privacy, it has examined the Fourth Amendment implications of aerial surveillance on several occasions. Part III examines those cases in some detail, as well as Jones (6) and Kyllo v. United States, (7) and the interpretations they suggest with respect to the constitutionality of UAS observations.

Part IV addresses UAS operated by private entities, who are unconstrained by the Fourth Amendment restrictions that apply to the government. Private UAS users will enjoy strong First Amendment protections for gathering information in public spaces. But the rights conferred by the First Amendment are not unbounded, and...