A Rational Approach to Regulating Private Drones
This week Eric Schmidt of Google went on record saying that cheap, miniature "everyman" drones should be banned by international treaties. Not only does he want to keep such devices from falling into the hands of terrorists, he also worries about their potential to invade privacy. Let's say, for example, you were having a dispute with a neighbor. "How would you feel if your neighbor went over and bought a commercial observation drone that they can launch from their back yard. It just flies over your house all day," Schmidt asked. "How would you feel about it?"
This is the kind of worry, as I discussed in an earlier piece, that is driving many state and local governments to enact bans and restrictions on the use of unmanned aircraft in advance of 2015 FAA rules that will allow them into US airspace.
Unfortunately, most of these drone regulators are seriously jumping the gun. Legislating ahead of emerging technologies, history has made amply clear, is always a recipe for unintended negative consequences. And as a general rule, regulation by torch-wielding mobs never leads to optimal, or even helpful, solutions. Lawmaking, to work, needs to be deliberative and rational.
And regulating the design and use of drones according to fifty different sets of state preferences, not to mention counties and cities, can't possibly be efficient or effective. It's not clear that anybody except the FAA even has authority to regulate here, or at least not at altitudes over 400 feet. Which would be just as well. One set of rules, whatever they are, would be far better, especially for technically-complex and rapidly-changing products such as drones.
To introduce some rationality to this debate, it's probably a good idea to separate private uses of drones from use by law enforcement. The first poses much less of a threat. Your neighbor might post a YouTube video of a raucous party in your backyard, after all, but only law enforcement uses have the potential to put you in jail.
What's more, regulations against the private use of information-gathering and reporting technologies often run afoul of the First Amendment, which broadly protects freedom of speech. So even if state and local laws against drones aren't preempted by the FAA, they may otherwise be held unconstitutional.
The real concern with privacy rights ought to be with law enforcement uses. Here, the U.S. Constitution breaks in the other direction. The Fourth Amendment protects citizens from "unreasonable searches and seizures" by government, a clause that has been interpreted since the 1960s to provide Americans with a "reasonable expectation of privacy" that limits the ability of law enforcement agents to collect without a warrant not only tangible items but also information.
What constitutes a "reasonable expectation of privacy," however, is intentionally unclear. Since the Supreme Court first articulated the "right to privacy," courts have regularly been called upon to decide if some new form of technologically-enabled electronic surveillance — wiretapping, GPS, heat sensors, DNA tests, ultra-sensitive microphones — does or does not violate the Fourth Amendment.
In each case, the court asks whether the warrantless collection of information violated the defendant's expectation of privacy, and whether that expectation was "reasonable." Each new technology gets its own analysis. In a 2012 case, for example, the U.S. Supreme Court ruled against the police in a case involving GPS tracking devices. Attaching one to a suspect's car without a warrant, the Court said, violated the defendant's reasonable expectation of privacy.
Over time, of course, we get used to the fact that new technologies make it harder for us to operate in secret, especially outside of our homes. Put another way — the way law enforcement often puts it when novel uses come under judicial scrutiny — what constitutes a "reasonable" expectation of privacy is constantly changing ... and usually shrinking.
(Law breakers, at the same time, can also make use of new technologies to hide their activities, creating a kind of arms race.)
But even if the courts ultimately decide that drones are or will become so commonplace that it's no longer reasonable to expect that police aren't using them, Congress or individual states can still impose a warrant requirement on police if they want to make use of drone-collected evidence. They can also ban them outright — at least for law enforcement.
Today, for example, no one should be surprised to learn that it's easy for police to record calls over either wired or wireless telephone networks. But a 1968 law nonetheless requires a warrant to record domestic calls; a 1986 amendment similarly protects locally-stored emails. The same model could well be applied to drones, for whatever length of time lawmakers decide is appropriate, including permanently.
As for the private uses, legislative efficiency as well as the danger of crushing a potentially valuable industry in its infancy suggests the wiser course is to wait to see what, if anything, goes wrong.
Once it's clear what the real harms are, and equally clear that market forces have failed to correct them, then legislators — the fewer the better — can step in and fashion rules carefully crafted to fix the intractable problems. Assuming, of course, that existing laws are found not to apply, or to apply effectively. The kind of harassment suggested by Eric Schmidt's hypothetical, for example, is certainly already illegal, whether by drone or otherwise.
Drones will by no means be the last Big Bang technology to invoke the creepy factor. So it's worth underscoring the fact that in privacy law, a little outrage can go a long way, and often in the wrong direction. Caution is a virtue more honored in the breach, unfortunately.
Even today, for example, the most influential law review article on privacy is one that was written for the Harvard Law Review in 1890 by future Supreme Court Justice Louis Brandeis and his law partner Samuel Warren. The two, outraged by new technological advances that challenged their notion of personal privacy, called on governments to enact strong new protections to safeguard what they called "the right to be let alone."
Few states took up the call, and those that did have largely backtracked. Which is probably just as well. The creepy new technology that upset Brandeis and Warren was short-exposure photography and the ability it gave newspapers to capture and report news events with pictures.
For better and for worse, it's hard to imagine the world without those developments. Just as someday it may be hard to imagine a world without millions of drones flying around, doing our bidding.