DRONE SURVEILLANCE: THE FAA'S OBLIGATION TO RESPOND TO THE PRIVACY RISKS

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Date: July 2017
From: Fordham Urban Law Journal(Vol. 44, Issue 3)
Publisher: Fordham Urban Law Journal
Document Type: Article
Length: 9,495 words
Lexile Measure: 2100L

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Introduction 767 I. FAA Modernization Act 769 A. The FAA and the Petition for a Drone Privacy Rulemaking 771 B. The FAA, Drones, and Privacy 772 C. EPIC v. FAA 775 II. Privacy Issues 776 III. Lack of Legal Protections 778 A. Fourth Amendment Law, Drones, and Aerial Surveillance 780 B. The Third Party Doctrine and Drone Surveillance 782 IV. Potential Market for Drone Data Collection 785 V. Importance of Privacy in Public 787 VI. Why the FAA Should Regulate Drones 789 A. Privacy Must be Addressed to Safely Integrate Drones into the National Airspace 789 B. The FAA Modernization Act Requires the FAA to Address Privacy Issues 790 Conclusion 792

INTRODUCTION

Imagine a scenario not too far off in the future where drones in the sky are a regular occurrence over densely populated urban areas. These drones do not need to be in the line of sight of an operator and do not need to be actively operated at all as they fly around autonomously. Some of the drones you can see but more are present then the eye can discern. Some are flying too high to see and are too quiet to hear.

The drones constantly flying overhead are delivering packages, transporting people, monitoring traffic, checking infrastructure, providing building security, and monitoring the environment. You know that the drones carry all sorts of high-tech equipment. But you do not know exactly what technology is on the drone, what the surveillance capabilities are, what information these drones could be collecting about you and anyone else who happens to be in a public space, or how this information could be used or to whom the information could be disclosed. Going into public essentially means giving up your privacy in a way never imagined before with little to no say in the matter. To maintain any semblance of privacy in public requires extraordinary efforts that limit your ability to participate in modern society. You do not carry your smartphone or any other mobile device that connects to the internet, (1) you wear a hood and special tinted glasses to thwart ear, (2) iris, (3) and facial recognition, (4) and you randomize your gait. (5) You also wear gloves to prevent the capture of your fingerprints, (6) avoid driving your own car, (7) and avoid using the new self-driving/flying drone cars (8)--you stick to walking, biking, or mass public transportation.

The description above sounds a lot like the beginning of a dystopian novel, but it is the current track we are on as drones are being integrated into the National Airspace with no privacy protections for public space. In 2012, the Federal Aviation Administration ("FAA") was tasked by Congress with integrating drones into the National Airspace. Five years later, the agency is still working on domestic drone integration but refuses to address privacy as the agency works to establish safety rules for drones despite identifying privacy as an important issue to address as drones are integrated into the National Airspace. (9)

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Gale Document Number: GALE|A511509986