Drones can photograph almost anything. But should they?

SpaceX Rocket HopDALLAS

Cyclone Pam tore through Vanuatu in the South Pacific in March 2015, destroying or damaging 17,000 buildings and displacing 65,000 people from their homes. Shortly after the storm, humanitarian first responders and journalists began flying drones over the affected area to document the devastation.

Drones have become an increasingly important tool for quick, comprehensive damage assessment after natural disasters, but such footage can be invasive. As Matt Waite, who runs the Drone Journalism Lab at the University of Nebraska, points out, “a lot of these houses had their roofs ripped off but the walls still intact.” In video NBC news shot after the storm, you can clearly see inside. “What if newlyweds decided to do what newlyweds do at that particular moment you happen to be flying along?” Waite asks.

Many in the humanitarian community have adopted a voluntary code of conduct that lays out some guidelines about how to fly drones safely and gather information in a way that respects people’s privacy. But there is no such code of conduct for the growing number of private and commercial entities that use drones, including news outlets, which are resisting even non-binding guidelines that might restrict access to the air.

Here’s why we need such guidelines: Legal scholars argue that airspace is neither wholly private nor wholly public, but something in between. By resisting any privacy safeguards in this nebulous space, media organizations and their representatives may be facilitating massive violations of privacy by large corporations under the guise of protecting free speech.

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Concepts like privacy, nuisance, and trespassing are defined in common law—the accumulation of court decisions over decadesas opposed to laws passed by Congress. In coming years, courts will define and interpret these concepts in a world full of drones. But courts can, at best, figure out what is legal and illegal; they aren’t equipped to restrain what might be technically legal but ill-advised. Voluntary guidelines can protect privacy in a way that courts can’t—and vice versa.

Just over a year ago, President Barack Obama called on interested members of the public to collaboratively “develop and communicate best practices for privacy, accountability, and transparency” as they relate to drone use. The goal is to come up with guidelines for commercial and private drone operators that would allow the budding unmanned aerial vehicle industry to develop while also preserving the right to privacy—something like what the humanitarian community has already done, but for all non-governmental drone users.

Obama put an agency of the Department of Commerce called the National Telecommunications and Information Administration, known as the NTIA, in charge of organizing the process. The NTIA is not supposed to write the guidelines itself, but only to nudge participants toward consensus. The Federal Aviation Administration (FAA) is the agency that has authority to make binding rules about who can fly where, and Congress is currently debating a new law that will revamp what the FAA is supposed to do with respect to drones and more generally. The Senate passed a version of the bill this week that sets a mid-2016 deadline for completion of the NTIA process.

Meanwhile, a quiet battle between the First and Fourth Amendments has been unfolding in a Washington conference room, pitting news organizations that want unfettered access to the view from the air against privacy advocates and even lobbyists for big technology companies, who want at least some rules to keep drones out of people’s personal lives.

The NTIA group has met five times, and has scheduled a sixth meeting for mid-May, at which participants hope to agree to a finalized set of guidelines. A previous NTIA-mediated attempt to come up with guidelines for the use of facial recognition software broke down last year when the Electronic Frontier Foundation, the American Civil Liberties Union (ACLU), and other groups walked out, in protest that “companies wouldn’t even agree to the most modest measures to protect privacy.” This time around, it is lobbyists for media companies who have the strongest objections to guidelines that would protect privacy. “We have a real problem with privacy rights groups trying to say that you have a privacy right when you are out in public,” says Mickey Osterreicher, general counsel of the National Press Photographers Association.

For news organizations, the rationale for not restricting drone use is simple. “You don’t need a person’s permission to photograph them when they are out in public,” says Osterreicher. The rules should not be any different, he says, if a photographer is using a camera attached to a drone: “We should not be creating new laws based solely on the fact that it involves a new technology.”

Even voluntary standards can be problematic, some media representatives say. A company can be sued for not following such standards, even if it never agreed to them, warns Chuck Tobin, a partner at Holland & Knight, a DC lobbying firm that represents a large coalition of media companies, including The Washington Post, The New York Times, the Associated Press, Thomson Reuters, NBC, ABC, and Advance Publications.

Tobin and Osterreicher argue that there shouldn’t be any privacy-related restraints on drone use in public, while in private spaces, drone operators should pay attention to their subjects’ “reasonable expectation of privacy.” But this laissez-faire approach is bad for the newspapers and magazines they represent, and for the public at large.

The First Amendment protects information-gathering because it guarantees both freedom of speech generally and freedom of the press in particular. If I’m not allowed to take a picture, according to a 2012 decision by a Federal appeals court in Chicago, then I can’t exercise my free speech right by publishing it, so a restraint on picture-taking is a restraint on speech. The same logic applies to the freedom of the press. However, as the Supreme Court found in a 1965 case, “the right to speak and publish does not carry with it an unrestrained right to gather information.”

Our skies are filling with cameras. The American public bought almost a million drones in 2015. The millions of drones in private hands are being joined by tens of thousands flown by corporations. Some companies, like Amazon and Google, plan ambitious national drone delivery networks. This means that, in much of the country, a drone owned by one of those mega-companies may soon be overhead almost constantly, on its way to your neighbor’s house to deliver a package.

Any commercial drone flight requires a special FAA exemption. Almost 5,000 such exemptions have been issued as of April 18, of which just over 200 mention newsgathering as at least one of their missions.  Additionally, after a year of lobbying by media lawyers, the FAA announced in May 2015  that journalistic organizations may use drone footage or images recorded by third parties without such an exemption. The only restriction is that the journalist must not have had “operational control” of the drone.

The proliferation of drones will change American day-to-day life in profound ways. Drones are increasingly able to loiter indefinitely overhead, and to photograph events in the murky boundary between private and public space. Take, for instance, a movie set. Actors in last year’s Star Wars reboot wore heavy robes over their costumes and hid their faces as they walked from movie trailers to the set, Waite notes, because paparazzi were using drones to snap pictures of the actors. Producers reportedly resorted to hiring their own teams of counter-drone drone operators.

For all the promise of drone journalism, there are relatively few examples of drones having been used in the US in a journalistically noteworthy way. This is partly because the FAA still makes it relatively difficult to get permission to fly. But it might also be because their significance for journalism has been exaggerated. Tobin, the media lobbyist, cites a New York Times video from Greenland, TV footage of a frozen Niagara falls, a CNN video taken in Selma, Alabama, and footage taken after a tornado. All of these are nice enough, but none is transformative. There’s every reason to believe drones will become only a useful niche tool for journalism—a new sort of telephoto lens.

The arrival of hundreds of thousands of drones is, of course, not an isolated phenomenon. The sky isn’t the only place filling with cameras. CCTV cameras on street corners in major cities, wearable cameras, and cameras on mobile phones are changing the nature of privacy. Clear-cut cases in which a drone, say, loiters outside someone’s bedroom window, are indeed easily resolved with existing common law precedents against trespassing, nuisance, and harassment. But what about examples that aren’t so obvious, like using a drone with a telephoto lens flying hundreds of feet in the air to surreptitiously take pictures of protesters at a demonstration? “Our general rubric,” Tobin says, “is if it’s in a public place, and the public can see it, the public has a First Amendment right to record it and disseminate it to other people.”

Tobin’s view puts him at odds with legal scholars and some Supreme Court justices. As the film set example points out, there are many instances in which a drone’s capabilities can enable it to infringe on privacy in novel ways. Because the constitutional protections for information-gathering are implicit rather than explicit, different Federal courts have drawn the line in different places, and scholars and judges disagree about how strong the protections are. As a result, according to an article in the William and Mary Law Review, there is “considerable uncertainty over First Amendment protection of information-gathering.”

In a recent and widely-cited opinion, Justice Sonia Sotomayor made the point that recording and aggregating the history of movements even in public, “enables the Government to ascertain, more or less at will, [people’s] political and religious beliefs, sexual habits, and so on.” Though individual data points, such as my presence on a particular street corner at a particular time, might be perfectly innocuous, she asked, is the same true of a compilation of everywhere I’ve been today, or over the last week or month?

A recent report by the Congressional Research Service pointed out that government agencies can’t use drones for domestic surveillance unless they figure out the Fourth Amendment implications. Technically, the Fourth Amendment doesn’t affect what private citizens or companies can do with drones (or anything else). It only applies to searches (and seizures) by government agencies. But as the William and Mary law review article points out, “It will be hard for people to argue that they are unsettled and made insecure by police drone use in a world where they expect—and have adapted to—being subject to drone surveillance by everyone else.” This means that if we want Fourth Amendment protection against police use of drones, we might also have to accept some limits on what other people, including journalists, do with drones.

This doesn’t, as the William and Mary law review article says, mean doing away with the First Amendment. It just means balancing two elements of the Bill of Rights. Privacy rights, the article argues, should depend on what type of recording is being made (for instance, whether it’s a video recorded by a surveillance camera or a work of art); who is recording (a credentialed journalist or a marketing company); what the recording is about (is it a matter of public interest?); and whether the government’s restriction is intended to muzzle speech (by, say, giving preferential privacy protections to a company that has political influence). None of these distinctions is necessarily clear cut, but these are sensible questions to ask.

Take, for instance, the case of William Meredith and John David Boggs of Bullitt County, Kentucky, south of Louisville. Boggs was flying a drone, a common consumer model, and Meredith shot it down with a shotgun. Meredith was charged with criminal mischief and wanton endangerment, but a local judge dismissed the charges, ruling that the drone was flying low enough to violate Meredith’s privacy, based on eyewitness testimony. Boggs, though, released video to news outlets that appears to show he was flying much higher than Meredith said he was, and therefore wouldn’t have been able to effectively spy on Meredith (who he calls the “drone slayer”).

In January, Boggs sued Meredith for destruction of property. The courts will likely take years to definitively resolve their case. In late March, an Arkansas man shot down a drone with a rifle because, he told police, he feared the drone was taking pictures of his kids, who were jumping on a trampoline in the backyard. Rather than waiting for the courts, it makes sense to craft guidelines that proactively parse difficult territory and balance conflicting rights.

The process Obama set in motion last year has been underway since August, culminating with the NTIA’s most recent meeting in Washington in late February, when Tobin and his colleagues proposed a set of guidelines that give commercial drone operators carte blanche to write rules for themselves. According to the Holland & Knight guidelines, commercial drone operators “should be guided by the standards and practices of the organizations for which they work,” both in how they use drones and in how they use the data drones gather. If that organization has well-thought-out standards and practices, this works out swimmingly. But what if it doesn’t? What if that organization, instead of being a civic-minded newspaper, is a gossip website, or a shady marketing company?

Tobin says he and his colleagues “became reluctant craftspeople.” They “put pen to paper,” he says, because other drafts that had circulated at the NTIA meetings gave insufficient attention to the First Amendment. Other groups, including the Center for Democracy and Technology (CDT), an advocacy group, and Hogan Lovells, a law firm whose clients include the National Association of Broadcasters, have been trying to write a consensus draft. (Disclosure: I have been present at the NTIA meetings as an interested observer and participant, and have given comments to both CDT and Hogan Lovells on their drafts, as well as to lawyers working for Amazon who have combined the two drafts.) That consensus calls for drone operators to “avoid knowingly retain[ing] personal data longer than reasonably necessary to fulfill the purpose for which the data were collected.”

This means journalists who want to can, within the guidelines, keep pictures for as long as they think they need to, but that if an Amazon delivery drone films everything it sees while delivering a package, Amazon should delete that footage after the package is successfully delivered. Tobin says guidelines like these infringe on the First Amendment. “To us, the First Amendment is a foundational principle,” he says.

To understand what the non-binding guidelines might look like, it’s helpful to think of Google’s Street View. Google’s cameras take pictures of people, cars, and the fronts of buildings in what are clearly public spaces. But Google voluntarily blurs the faces of individuals and the license plates of vehicles because these constitute “personally identifiable information.” Some still see Street View as an invasion of privacy, but blurring mitigates the privacy harm, even if Google has the right under the First Amendment to take such pictures. This type of voluntary redaction is a good idea. It doesn’t make Street View any less useful for its intended purpose of helping people navigate, and it makes it a little less intrusive. It doesn’t eliminate unintended privacy consequences: even though his face was blurred, this guy’s wife still famously caught him sneaking a cigarette in a Street View picture.

Data retention in the context of journalism can be a tricky question. As Holland & Knight point out in an NTIA filing, pictures of O.J. Simpson taken in 1993 were used in his trial years later to “show that he owned Bruno Magli shoes that he claimed he never owned.” That is one reason the CDT-Hogan Lovells draft doesn’t place hard restrictions on how long data should be retained. It just points out that it’s worth thinking carefully about whether data ought to be retained.

The Hogan Lovells-CDT draft, put together by a loose coalition of industry representatives and privacy advocates, tries to place voluntary limits on the use of persistent surveillance drones for marketing, or say, credit or health care treatment eligibility. The best practices are voluntary, and liberally sprinkled with caveats. As in the Street View example, they call for drone operators to avoid displaying data unless it is necessary to the task at hand. But it doesn’t prohibit them from doing so, it just says that they should make a “reasonable” effort to blur images. 

Similarly, it calls on commercial operators to make “reasonable” efforts to protect personal data from hackers. It says that unless there is a “compelling need,” drones shouldn’t be used to gather data for monitoring people’s eligibility for “employment, credit, or health care treatment.” For example, your health insurance company should be discouraged (though not prohibited) from monitoring your exercise habits—did you really go running by the lake this morning?—using a drone.

By contrast, the Holland & Knight document proposes that, “[i]n public spaces, UAS operators may use UAS without limitations to capture data or images as with any other technology. There shall be no limitations or restrictions on the subsequent use of data or images gathered by UAS in public spaces.” In plain terms, this means that if you are in public, Holland & Knight think anyone has the right to use a drone to keep track of where you are going, and where you have been, for any length of time.

Waite, the journalism professor, was one of the first people to use drones for journalistic purposes in the US, and hopes to continue doing so. “I have no interest in the government getting involved in speech issues,” he says. Even if some media outlets “take their First Amendment missions seriously…and try to do this the right way,” others use the First Amendment only nominally, as a tool to push the boundaries in pursuit of profit. Voluntary guidelines that seek to balance privacy and the right to gather information are reasonable, Waite says.

Balancing the right to gather information with the right to privacy has never been easy. New technologies for image and data gathering and analysis, like drones and facial and voice recognition software, make finding the balance even harder, in part because such innovations change what is realistically possible. In the past, the high cost of, say, loitering in front of someone’s door for weeks at a time and filming video the whole time would have made it effectively impossible for journalists and law enforcement to do what a drone will be able to do very cheaply in the near future. Tobin says that just as people got used to film cameras in the late 19th century, they should, and will, get used to “perpetual surveillance” today.

In 1890, Louis Brandeis and Samuel Warren published a landmark essay called The Right to Privacy. “The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual,” they wrote.

Solitude and privacy are at least as important to journalists themselves as they are to the public at large. As the William and Mary law review article says, “the First Amendment itself is arguably conflicted as greater recording leads to greater amounts of expression, but can chill freedoms of association and personal development that make for meaningful expression and deliberative participation.” Their arguments echo those of Julie Cohen of Georgetown University Law Center, who has pointed out that privacy shapes the structure of our economy and society in subtle, but vital ways, and that as privacy is diminished, democracy is threatened.

Despite growing recognition of the importance of privacy, with drones as with other technologies, privacy violations that might seem unwise to most people will be allowed by law. Just because you can fly over someone’s ruined house and film them inside it, should you?

Voluntary guidelines can hardly solve all the dilemmas provoked by the “intensity and complexity” of modern technology, but they can be a start. It may well be that this attempt to find a consensus will fail as the previous NTIA process around facial recognition did. That would be a loss for the public at large, and for journalists in particular.

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Konstantin Kakaes is a fellow at New America and author of The Pioneer Detectives, an e-book. Follow him on Twitter @kkakaes.