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Who’s Listening?

Droning on: Unmanned aerial vehicles raise privacy concerns by John Jarvis Civil unmanned aerial vehicles, or drones, have left the realm of science fiction and are making their way into use by businessmen, law enforcement officials and newsgathering organizations in the United States. This drone use is stirring up privacy concerns at the state level, but because these drones are being operated in public, there’s little in the way of American privacy laws that prevents their use. Constitutionally, the Fourth Amendment provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But is that enough in the face of this technological advancement? The American Civil Liberties Union, in a story posted online March 6 (and updated June 21) by strategist Allie Bohm, reported that legislation to regulate drone use had been proposed in 42 states, enacted in six states and is still active in 28 states.. Part of the problem, however, is that the definition of “drone” has not been established uniformly. These aircraft come in all shapes and sizes, and some can stay aloft for long periods of time. Some can hover like a helicopter, while others fly like airplanes. But even as the battle to define the term “drone” continues, tens of thousands of these small, unmanned vehicles are zipping through U.S. airspace. A story posted March 3 on the Reuters news site and written by Chris Francescani begins with, “They hover over Hollywood film sets and professional sports events. They track wildfires in Colorado, survey Kansas farm crops and vineyards in California. They inspect miles of industrial pipeline and monitor wildlife, river temperatures and volcanic activity. They also locate marijuana fields, reconstruct crime scenes and spot illegal immigrants breaching U.S. borders.” Franscescani reports that these drones are “armed with streaming video, swivel cameras and infrared sensors,” and it is the use of this cutting-edge

technology that has raised privacy concerns in this country. Greg McNeal, a law professor at Pepperdine University, addressed the privacy concerns regarding drone use in a story written Aug. 13, 2012, for Forbes magazine. He contends that “the unmanned systems industry is not prepared for the upcoming fight with privacy groups.” To bolster his argument, McNeal provided an example of an effort to streamline the airport security process in place since the 9/11 attacks in New York and Washington, D.C. The Department of Homeland Security came up with a plan in 2003 to use “data already in the hands of airlines, voluntarily provided by passengers,” to verify airline passengers’ security status ahead of time. He notes, “DHS was fought tooth and nail by the ACLU (American Civil Liberties Union) and other privacy groups. … We’re talking about reservation data here. This was a tool that could have stopped 9/11. It could have stopped the Christmas Day Bomber. And it was opposed by the privacy lobby. Are unmanned systems more compelling?” Americans’ perspectives about drones remain divided. Slate’s Ryan Gallagher writes in an April 3 story posted online that the American public holds split opinions

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regarding drones. Gallagher’s story, titled “Privacy Risk or Future of Aviation? Five Perspectives on Domestic Drones,” lists the five prevailing views that emerged from those who participated in a Federal Aviation Administration call-in “engagement session” April 3: • “Drones are a safety hazard.” – The callers who voiced this concern indicated that they believed unmanned drones could interfere with flight operations involving manned aircraft, or that a drone could crash in a populated area. Both scenarios could result in a loss of life. Another risk mentioned was that an unmanned drone could be “hacked” and have its controls taken over by another operator. • “Drones are the future of aviation.” – These individuals do not see drone use as a threat to the U.S. population. In fact, they believe the United States should continue to advance drone technology, or it could be left eating the dust of other countries who do it instead. • “Drones pose an unprecedented privacy risk.” – This group of respondents fear the intrusion of drones on the privacy rights of the American public. To counter this, they suggested such things as banning

Who’s Listening?

Scorecard on legislation regarding drone use Privacy protection bills to regulate the use of surveillance drones have been proposed in 42 states, according to information gathered by American Civil Liberties Union advocacy and policy strategist Allie Bohm. Six states have enacted legislation, and bills are still active in 28 states, the ACLU reports. Here is the status of the various state legislative efforts, as of June 21: Alabama – Senate committee passed legislation. Alaska – A resolution creating a Task Force on Unmanned Aircraft Systems has been adopted. Arizona – A bill to protect U.S. citizens, with exemptions for drug crimes and human smuggling, has passed a House committee. Arkansas – Legislature adjourned without taking action on proposed drone legislation. California – Legislation introduced. Florida – On April 25, Gov. Rick Scott signed a state law, the Freedom from Unwarranted Surveillance Act, restricting police use of drones within the state’s borders. The law requires local or state law enforcement agencies to obtain a judge’s approval before they can use surveillance drones. The law took effect July 1. Georgia – Legislature adjourned without taking action on proposed drone legislation. Hawaii – Legislation introduced. Idaho – Bill signed by governor April 11; legislation took effect July 1. Illinois – House and Senate passed legislation; bill awaits action by Gov. Pat Quinn. Indiana – A Senate committee has passed a “study group” resolution, and a bill has been introduced. Iowa – Legislation introduced. Kansas – Legislation introduced. Kentucky – Legislation introduced. Maine – Legislation has passed both chambers and now is on the governor’s desk. Maryland – Legislation introduced. Massachusetts – Legislation introduced. all drone use in the United States; regulations on drone use that includes the use of search warrants for law enforcement personnel to use drones for surveillance and evidence gathering; and a public database, accessible via a website, that would record who is using a drone, and when and where it was used. • “Americans have the right to own a drone.” – Gallagher noted that one forceful caller, who said he was from Missouri, voiced this opinion. Gallagher added that “this position appeared rooted in an anti-Big Government stance strongly opposed to the introduction of any new laws and regulations

Michigan – Legislation introduced. Minnesota – Legislation introduced. Missouri – House passed legislation. Montana – Legislation to limit the use of unmanned aerial vehicles has been enacted; the law takes effect Oct. 1. Nebraska – Legislation introduced. Nevada – Legislation introduced. New Hampshire – A House committee passed a bill, but it was tabled in the House, so no legislation will be enacted this year. New Jersey – Legislation introduced. New Mexico – Legislation died in committee. New York – Legislation introduced. North Carolina – Legislation introduced. North Dakota – Legislation passed in the House but was defeated in the Senate; no legislation will be enacted this year. Oklahoma – A bill to regulate drone use was replaced with a call for an interim study on drone privacy issues. The bill is being held over until the next legislative session; no legislation will be enacted this year. Oregon – Legislation has passed both chambers and is on the governor’s desk. Pennsylvania – Legislation introduced. Rhode Island – Legislation introduced. South Carolina – House committee has passed legislation. Tennessee – The “Freedom from Unwarranted Surveillance Act” took effect July 1. Texas – House and Senate passed legislation; bill goes into effect Sept. 1. Vermont – Legislation introduced. Virginia – An “Act to place a moratorium on the use of unmanned aircraft systems” was approved April 3; legislation took effect July 1. Washington – A bill regarding drone use was not brought up for a full House vote before the legislative deadline, so no legislation will be enacted this year. West Virginia – Legislation introduced. Wyoming – Legislation died in committee.

that would govern how private citizens could and could not use drones.” • “What about mission creep?” – Shades of George Orwell’s novel “1984” abound in this expression of concern by some callers. Gallagher wrote that “some contributors said they were worried the introduction of drones into domestic airspace would lead to a sort of incremental militarization, with increasingly advanced forms of the technology being use[d] as part of draconian policing operations.” Gallagher notes that “the FAA (Federal Aviation Administration) has been given

until September 2015 to integrate drones into the national airspace system, and it is currently working to develop six unmanned aircraft research and testing sites across the United States.” Once the new rules take effect, “the FAA predicts there will be between 7,500 to 15,000 commercial drones flying in American skies in just five years,” according to a story by Lorenzo Franceschi-Bicchierai that was posted on the website Mashable. com on April 24. Continued on page 35

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Gjr vol43 no331  
Gjr vol43 no331