Secrets of the Deep: Defining Privacy Underwater.

• Author: Brett, Annie

Table of Contents INTRODUCTION 48 I. PRIVACY AT SEA: THE LAY OF THE LAND 52 A. Drones at Sea: The Current State of the Field 52 1. Characteristics of UUVs 53 2. Uses of UUVs 58 a. Military 58 b. Commercial 59 c. Scientific 59 d. Recreational 60 B. The Marine Environment 61 II. PRIVACY AT SEA UNDER U.S. LAW 64 A. Underwater Privacy Under U.S. Private Law 65 1. Trespass and Nuisance 65 2. Other Private Law Protections 69 3. Laws Applying to Commercial Entities 70 B. Underwater Privacy Under U.S. Public Law 74 1. Fourth Amendment Background 75 2. A Subjective Expectation of Privacy Usually Exists at 76 Sea 3. Is an Expectation of Privacy from Surveillance by UUVs 78 Reasonable? a. Unmanned Commercial Structures 79 b. Manned Structures and Vessels 81 c. Over People 86 III. PRIVACY UNDER THE LAW OF THE SEA CONVENTION 88 CONCLUSION 92 INTRODUCTION

"The ocean's mysteries will not remain hidden from rapidly developing technology...."--Mary Ann Becker (2) In 1948, oceanographcr F.P. Shepard famously stated that we knew more "about the surface of the moon than about the vast areas that lie beneath three-fourths of the surface of our own planet." (3) Seventy years later, this statement remains largely true. (4) Historically, spatial and technological constraints have limited underwater exploration to highly funded commercial and military ventures. (5) But today these barriers to entry are changing. As drone technologies become cheaper and more powerful, underwater exploration is blossoming in what some have called the "inner space race." (6) The advent of widely available underwater vehicles has not only expanded the commercial possibilities but for the first time put remotely operated submersibles in the hands of the general public. (7) Recreational drones carry high-resolution cameras and allow exploration of underwater shipwrecks and other features previously accessible only to highly technical dive teams or commercial submersibles. (8) As the founders of OpenROV, one of the first companies to manufacture these drones, put it, their goal is to create "a lot more eyes in the ocean." (9)

The magnitude of this shift should not be downplayed. Historically, underwater areas have been defined by the very absence of human eyes. (10) Vast spaces coupled with logistical difficulties have established the ocean as an "operational sanctuary" where even the most unsophisticated vessels and operators are unlikely to be detected. (11) Marine operations have long taken advantage of this fact, relying on their environment to ensure the secrecy of commercially and militarily critical equipment. (12) Underwater drone use is changing this status quo, and that fact's importance has been recognized by both military (13) and commercial (14) interests. The global oceans are a crucial part of the global economy, through commercial fishing, underwater mining, shipping, oil and gas extraction, and a host of other uses. (15) As the number of eyes in the ocean increases, new legal questions also arise about where and how these eyes can be used and whether they will interfere with the existing uses that have relied on secrecy for so long.

These questions have gone essentially unexplored in relation to underwater drones, but this is not the case with aerial drones. Aerial drones have seen an even more dramatic explosion in availability and use, prompting considerable discussion among scholars and policymakers on what privacy limits exist to prevent aerial drone surveillance. (16) Aerial drones, like underwater drones, are able to access areas that were previously inaccessible--the low airspace above people's homes, for instance. This novel access has prompted extensive debate about the limits of private property and privacy interests in these previously inaccessible areas. (17)

Underwater drones prompt the same questions, though if aerial drones are notable for the sheer volume of privacy discussions they have spurred, underwater drones are notable for the opposite. The question of privacy rights at sea has received essentially no attention in the academic literature. Just as the clear limits of ownership above a person's property had no reason to be fully considered prior to the advent of aerial drones, so too has there been no reason to consider the extent of privacy and personal property underwater. As such, the legal regime of underwater privacy is a sketchy outline at best.

Intuitively, privacy in the oceans may seem a relatively esoteric question: unlike aerial drones where the potential privacy infringements arc obvious and widespread, (18) the underwater implications are less clear. People do not have homes and correspondingly sacrosanct privacy rights underwater. However, the commercial, military, and recreational uses of the ocean represent a substantial and strategically crucial portion of our national economy. (19) From deep-sea drilling to aquaculturc to undersea pipelines, a significant amount of commercial, recreational, and military activity happens underwater. (20) These activities have taken place out of sight of the public until now, with operators relying on secrecy both to disguise important commercial processes as well as hide in many cases flagrant law-breaking. (21) The potential for their surveillance raises serious concerns for many entities, and drone use has the capacity to completely change methods of operation in the underwater environment.

In just one example of how drones are changing marine operations, drones are increasingly being used to claim possession over sunken ships under the maritime law of finds and salvage. Historically, divers were often placed in extreme peril to find and claim sunken ships once treasure hunters had located them. (22) Today, drones have replaced divers both in searching for historical vessels as well as in legally claiming these vessels for salvors under maritime law. (23) Courts have found that "seeing" a shipwreck on a drone's video feed is sufficient to establish a right to a ship, (24) creating an easy avenue for treasure hunters to make salvage claims. Courts have long upheld salvage claims based on Remotely Operated Vehicle ("ROV") observation: in 1989, the U.S. District Court for the Eastern District of Virginia famously found that telepresence established the right to the deep (and abundant gold-filled) shipwreck of the S.S. Central America. (25) This decision made telepresence capabilities an important part of salvage and had huge economic impacts on the marine salvage industry. In 1989, for example, the U.S. government "found" a shipwreck using a ROV and subsequently sold the salvage rights it had acquired to private investors to carry out salvage. (26) At the time this was revolutionary, but today the widespread availability of underwater drones makes buying and selling of underwater rights possible on a far grander scale. Treasure hunters in particular arc afraid of competition for claims, as drones expand the possibilities for salvage claims to members of the public who were previously financially or logistically foreclosed from engaging in treasure-hunting activities. (27) Furthermore, this expansion also raises significant privacy and commercial confidentiality concerns. Traditionally, treasure hunting was a highly guarded, secret enterprise. (28) Public surveillance of the shipwrecks, their contents, and the retrieval methods has led to extremely heated disputes, and increasing surveillance by drones is likely to do the same. (29)

As underwater drones are becoming widely availability, questions about how underwater interests may be protected from outside surveillance are timely and novel. This Article addresses these issues, drawing on analogues from privacy discussions about aerial drones to understand what protections, if any, there may be from surveillance by drones operating underwater. In Part I, I give background information on the types and capabilities of drones currently operating in the marine environment. I also lay out the characteristics of existing maritime entities operating at sea and examine how they may be susceptible to drone surveillance. In Part II, I ask what personal privacy and commercial confidentiality rights these entities may have under existing U.S. law, addressing both public and private regimes. Part III looks at these rights in international waters under the the United Nations Convention on the Law of the Sea ("UNCLOS"). I find that our underwater privacy regimes are extremely weak in the face of Unmanned Undersea Vehicles ("UUV") surveillance and that the regimes protect far fewer rights for entities operating at sea than for comparable entities on land. I argue that judicial interpretation of privacy rights at sea to date has been dangerously eroded and that courts must strengthen these privacy protections before UUV surveillance becomes a maritime norm.

1. PRIVACY AT SEA: THE LAY OF THE LAND

   The underwater environment is significantly different, both in legal governance and in practical aspect, than the terrestrial environment that most are familiar with. This Part addresses these differences, explaining what drone technologies exist currently as well as key aspects of the marine environments that they operate in. In the maritime world, perhaps more so than any other, the environmental characteristics inform the legal regime. Understanding these unique characteristics is critical to any analysis of the law governing this space.

   1. Drones at Sea: The Current State of the Field

      Aerial drones may be the more visible and prevalent form of drones currently, but maritime robots have been around for longer, making critical contributions to the marine economy. (30) Remote vessels at sea can be traced all the way back to 1898 when Nicholas Tesla demonstrated the first-ever use of radio waves to remotely control a moving object. (31) The object that Tesla controlled in what some have called "the birth of modern robotics" was a boat...