UAS State Privacy Considerations
On August 13, 2013, ASA Chair Alaska LT. Governor Mead Treadwell announced the following document resulting from a collaboration to help states address UAS Privacy concerns while achieving the benefits of this technology.
UAS Privacy Considerations
Unmanned Aircraft Systems (UAS) are emerging technologies that have the potential to transform America by providing wide ranging economic, environmental, safety, and security benefits. A recent study[i] by the Association for Unmanned Vehicle Systems International conservatively estimates that 103,776 high paying jobs could be created and state tax revenue could exceed $482 million by 2025. They believe that every year the integration of UAS into the aviation system[ii] is delayed, America will lose more than $10 billion in potential economic impact.
UAS applications and benefits include assisting these civil government and commercial tasks: emergency deployment at accident scenes, search and rescue, barricade situations, structure or other fire emergencies, terror threats, firefighting, chemical and HAZMAT detection, crop dusting, agricultural development, monitoring of pollution, pipelines, wildlife, traffic, and floods, aerial news coverage, delivering medical supplies to remote areas, aerial photography, forensic photography, real-estate photography, filmmaking, communications, broadcasting, Arctic and volcanic research, damage assessment, cargo transportation, port, border, and event security, etc. In addition to these direct benefits, UAS implementation has the potential to spawn many new industries and provide an incredible array of manufacturing, operation, and other high paying job opportunities.
Along with these benefits come concerns about individual privacy. There is an existing body of federal, state and local law relating to privacy. The question is whether existing law is adequate, absent extensive judicial review, to alleviate the concerns of state legislators and citizens regarding privacy rights in light of this new technology. Because this technology can use a variety of sensors and some can potentially loiter for long periods of time without detection, there is a concern that government can use these systems to monitor individuals in a way that was not imagined in Supreme Court 4th Amendment rulings based on the presumption of privacy[iii]. Because state law interacts with Federal 4th Amendment rulings, states may choose to enact legislation addressing this issue. The challenge is to provide privacy protection while allowing the use of UAS to achieve UAS’ many benefits, as described above.
Because of the complexity of this issue and the importance of privacy to citizens in every state, representatives of the Aerospace States Association (ASA)[iv], the Council of State Governments (CSG)[v], and the National Conference of State Legislatures (NCSL)[vi], have joined together to create considerations for states to evaluate in developing UAS legislation. As part of our impartial deliberative process, UAS privacy stakeholder associations including the ACLU, EPIC, and IACP Aviation Committee [vii], AUVSI – the industry trade association[viii] – as well as academics[ix] responded to our request to submit their suggestions for state privacy legislation to an independent law firm, Cadwalader, Wickersham & Taft LLP[x]. These submissions can be seen at http://aerostates.org/events/uas-privacy-submissions. Our review also included the Congressional Research Service’s report, “Integration of Drones into Domestic Airspace: Selected Legal Issues,” from April 4, 2013, and a memorandum for the Secretary from the Office of Civil Rights and Civil Liberties, U.S. Department of Homeland Security, dated September 14, 2012. After deliberation, ASA, CSG, and NCSL provide the following considerations:
- Warrants: States may consider requiring a warrant for government surveillance of an individual or their property where the individual is specifically targeted for surveillance in advance without their permission. All other observation activities should not require a warrant, to the extent allowed under Supreme Court rulings. Additionally, if there is not a specific person identified for surveillance in advance, it is generally not possible to obtain a warrant. Requiring one would eliminate UAS benefits, but can be addressed per recommendation number two, below.
- Data Concerns: Some are worried about government use of data derived from warrantless observations. States may consider addressing this by prohibiting the repurposing of data collected from Government use of UAS in warrantless observation unless a warrant allows the repurposing.
- States may consider prohibiting commercial UAS and model aircraft flights from tracking specific, identifiable individuals without their consent.
- States can consider prohibiting weapons to be carried by any UAS in commercial airspace.
- States may consider endorsing the International Association of Chiefs of Police Aviation Committee (IACP) “Recommended Guidelines for the use of Unmanned Aircraft[xi].” These guidelines define UAS and provide guidance for community engagement, system requirements, operational procedures, and image retention for UAS operations by law enforcement organizations.
- States may consider emphasizing that the FAA regulates commercial UAS[xii], and that they and model aircraft operations should be operated in a manner not to present a nuisance to people or property.