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Peek-a-boo, the drone sees you

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer   |   Dec. 8, 2013 at 3:26 AM   |   Comments

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WASHINGTON, Dec. 8 (UPI) -- Last week's eye-popping demonstration by Amazon.com of its proposed method of delivery -- packages dropped on doorsteps by little helicopter drones -- has become an Internet sensation.

The company uploaded a video demonstration of drone delivery on YouTube, and raked in more than 11 million hits in less than a week.

Amazon's drones are warm and friendly, like the heroes of a Disney movie. Others coming your way, not so much.

Analyses in 2012 and earlier this year by United Press International and others predicted tens of thousands of drones will populate U.S. air space in the near future.

But the drones, many of them launched by different levels of government or law enforcement, most launched by the private sector, will present a privacy challenge that inevitably will make a landing in federal courts, and ultimately in the U.S. Supreme Court.

Coincidentally with the Amazon demonstration, the Federal Aviation Administration last month released its "Final FAA Privacy Policy for UAS Test Sites" -- UAS stands for unmanned aircraft systems.

"In connection with the UAS test site selection, the FAA is sending a final privacy policy to the Federal Register that requires test site operators to comply with federal, state and other laws on individual privacy protection, and take other measures related to privacy," the agency said.

The agency has taken applications from 25 teams in 24 states for the six test sites, which are meant to help integrate drones into U.S. air space. The FAA is expected to announce its selections this month.

"The FAA's mission is to provide the safest, most efficient aerospace system in the world and does not include regulating privacy," the agency policy statement said. "At the same time, the FAA recognizes that there is a substantial debate and difference of opinion among policy makers, industry, advocacy groups and members of the public as to whether UAS operations at the test sites will raise novel privacy issues that are not adequately addressed by existing legal frameworks."

Later the policy said, "Although there is a long history of placing cameras and other sensors on aircraft for a variety of purposes -- news helicopters, aerial surveys, film/television production, law enforcement etc. -- the FAA is not, through awarding and supervising these test sites, taking specific views on whether or how the federal government should regulate privacy or the scope of data that can be collected by manned or unmanned aircraft."

Congress has set a September 2015 deadline for FAA regulations, but that appears to be slipping.

The Electronic Frontier Foundation, a digital privacy non-profit headquartered in San Francisco, estimates there will be about 30,000 drones in U.S. skies in the next decade.

The American Civil Liberties Union for one is sounding alarm bells about the introduction of drones to U.S. skies.

"U.S. law enforcement is greatly expanding its use of domestic drones for surveillance," the ACLU said on its Bill of Rights blog. "Routine aerial surveillance would profoundly change the character of public life in America. Rules must be put in place to ensure that we can enjoy the benefits of this new technology without bringing us closer to a 'surveillance society' in which our every move is monitored, tracked, recorded and scrutinized by the government. Drone manufacturers are also considering offering police the option of arming these remote-controlled aircraft with [non-lethal for now] weapons like rubber bullets, Tasers and tear gas."

The ACLU proposes allowing law enforcement to deploy drones only with a warrant or in an emergency, an issue the FAA ducks even though such a requirement came up in public comments to the agency.

Conservative commentator Charles Krauthammer also sees pitfalls, to say the least.

On Fox News' "Special Report," Krauthammer said he doesn't "want regulations, I don't want restrictions, I want a ban on this. Drones are instruments of war. The Founders [of the country] had a great aversion to any instruments of war, the use of the military inside even the United States. ...

"It ought to be used in Somalia to hunt bad guys but not in America. I don't want to see it hovering over anybody's home. Yes, you can say we have satellites, we've got Google Street View and London has a camera on every street corner, but that's not an excuse to cave in on everything else and accept a society where you're always ... being watched by the government."

The ACLU looks to the federal courts and Congress to rein in the drones, but Krauthammer sees people resorting to the family long gun.

Krauthammer predicted "that the first guy who uses a Second Amendment weapon to bring a drone down that's been hovering over his house is going to be a folk hero in this country."

A report released early this year by the non-partisan Congressional Research Service raises a number of questions.

The report said the 2012 FAA Modernization and Reform Act makes drone safety a primary concern, but it "fails to establish how the FAA should resolve significant, and up to this point, largely unanswered legal questions."

Would a drone overflight in the United States, the report asks, "constitute a trespass? A nuisance? If conducted by the government, a constitutional taking? In the past, the Latin maxim cujus est solum ejus est usque ad coelum [for whoever owns the soil owns to the heavens] was sufficient to resolve many of these types of questions, but the proliferation of air flight in the 20th century has made this proposition untenable. Instead, modern jurisprudence concerning air travel is significantly more nuanced, and often more confusing."

The CRS said courts "have struggled to determine when an overhead flight constitutes a government taking [or appropriation] under the Fifth and 14th Amendments. With the ability to house surveillance sensors such as high-powered cameras and thermal-imaging devices, some argue that drone surveillance poses a significant threat to the privacy of American citizens. Because the Fourth Amendment's prohibition against unreasonable searches and seizures applies only to acts by government officials, surveillance by private actors such as the paparazzi, a commercial enterprise or one's neighbor is instead regulated, if at all, by state and federal statutes and judicial decisions.

"Yet, however strong this interest in privacy may be," the report said, "there are instances where the public's First Amendment rights to gather and receive news might outweigh an individual's interest in being let alone."

The report said there are "a host of related legal issues that may arise with this introduction of drones in U.S. skies. These include whether a property owner may protect his property from a trespassing drone; how stalking, harassment and other criminal laws should be applied to acts committed with the use of drones, and to what extent federal aviation law could pre-empt future state law.

"Because drone use will occur largely in federal airspace, Congress has the authority or can permit various federal agencies to set federal policy on drone use in American skies," the report said. "This may include the appropriate level of individual privacy protection, the balancing of property interests with the economic needs of private entities, and the appropriate safety standards required."

The report concluded: "The legal issues discussed in this report will likely remain unresolved until the civilian use of drones becomes more widespread. To that end, the FAA has been tasked with developing 'a comprehensive plan to safely accelerate the integration' of drones into the national airspace, which focuses on the safety of the drone technology and operator certification."

There is no explicit right to privacy in the U.S. Constitution.

But in 1965's classic 7-2 decision in Griswold vs. Connecticut, a U.S. Supreme Court majority led by Justice William O. Douglas found a state law "forbidding use of contraceptives violates the right of marital privacy, which is within the penumbra of specific guarantees of the Bill of Rights."

"Penumbra" aside, the high court has consistently recognized implicit constitutional privacy rights, particularly in the 7-2 decision in Roe vs. Wade, which recognized that a right to privacy extended to a woman's right to have an abortion.

Privacy rulings culminated in 2003's Lawrence vs. Texas.

In Lawrence, a 6-3 majority led by Justice Anthony Kennedy struck down the Lone Star State's anti-sodomy law and basically told government to get out of the bedroom.

But in the legal mind, certainly in the minds of the justices, the right to privacy in the Fourth Amendment hinges on a reasonable expectation of privacy. In other words, you may have a reasonable expectation of privacy in your bedroom, but have no such expectation when attempting to board an airliner.

Is that expectation reasonable when tens of thousands of drones populate the skies over the United States, as they surely will within the near future, many of them conducting surveillance?

© 2013 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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