An Observation of the Observers: Unmanned Aircraft and Privacy

Last November Senator Ed Markey of Massachusetts introduced the Drone Aircraft Privacy and Transparency Act, which serves to amend the Federal Aviation Administration’s Modernization and Reform Act of 2012. The previous act supplied a set of parameters for the operation of unmanned aircraft in US Airspace; however, in light of the US airspace opening to commercial unmanned aircraft systems (UAS) in 2015, the amendment would establish additional federal standards to preserve individual privacy and keep the public informed on the development of UAS. [1][10] Among the stipulations proposed in the Drone Aircraft Privacy and Transparency Act are explicit disclosure of data collection practices, requirements for the public accessibility of UAS operation information, procedure for obtaining warrants for search with concurrent prohibitions on the sharing of information, and regulatory oversight from the appropriate branches of the federal government. The legislation submitted by Senator Markey serves to promote greater transparency of conduct in unmanned aircraft surveillance, but the actual privacy rule adopted by the FAA is less directly engaged with privacy issues.

At present, the Federal Aviation Administration (FAA) entrusts the enforcement of privacy policies to the operators at UAS test sites. [2] The agency contends that managing extensive privacy protections are out of its regulatory purview, and given the many nuanced–and at times contradictory–concepts of privacy, the agency’s decision to abstain from unilaterally overseeing delineations in privacy necessitates clearer boundaries on the notion. Daniel Solove discusses some of these myriad interpretations of privacy that have been adopted and debated. Solove’s “Conceptualizing Privacy” reveals a web of interrelated constructs such as confidentiality, accessibility, and secrecy. [3] Florida v. Riley 488 U.S. 445 (1989), cited by Solove and directly relevant to the UAS secrecy issues, displayed the court’s ill-defined notion of infringement.[4] In the ruling, the Court held surveillance from the air was not subject to Fourth Amendment protections as navigable airspace is considered a public vantage point. Over two decades later, the sophistication of observation technology and the ability of craft to stay aloft for 16 – 24 hours weakens the Court’s assertion of contextual equivalence.[5]

Unmanned aerial vehicles do not clearly convey of choice according to Nissenbaum’s premise of “informed consent”, whereupon detailed information about surveillance activities will not be served to the public via an FAA database of test site operators. [6][2] This is also evident in the FAA’s current policies, where a) users are not directly conveyed the meaning of privacy requirements and (b) the effect of existing social roles are not part of the overarching contextual inquiry. For domestic drones, the constraints on streams of information are a combined function of technical possibility and the various information flows in different realms (sensor data, cloud computing, archived data, etc.). Another aspect with automated data collection revolves around data privacy because of temporal nature of data. For example, if the real time data from is archived, it can be used for discriminatory targeting especially if the data collected from intelligent drones are combined with advanced correlatives and are fed to a data mining platform. [11] Circumspection and cooperation on part of the users might be useful values when they are integrated in an umbrella data privacy framework. For example, as the Court observed in Katz v. United States, 389 U.S. 347, 351 (1967): “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection”.[3] These observations must be re-evaluated in new light of changing social norms and pervasive technology environment  to codify effective privacy laws for surveillance state.

Given the complexity of the aforementioned privacy concerns and next year’s advancement of commercial unmanned aircraft systems in US, it is vital that an approach to surveillance be tailored to monitor the activities of drones and drone operators. The far-reaching extent of the current capabilities of the medium must be taken into account. The core principles of privacy could be addressed partially by applying the FTC Fair Information Practice Principles (FIPP) [7] guidelines, in particular the aspects on Notice/Awareness, Choice/Consent, and Access/Participation. Recent FAA actions such as positioning UAS test sites as public institutions are foundational activities towards potent privacy laws.[8] Finally, the Drone Aircraft Privacy and Transparency Act introduced by Senator Markey refers to the OECD’s Guidelines on the protection of privacy and Transborder Flows of Personal Data, citing the principles listed in Part Two of the guidelines, which include principles on the national application of collection, quality, purpose specification, and use limitation of personal data. [9] Recommended practices as enumerated in FIPPs and OECD are bolstered when adhered into legislation, and it is in the interest of government to address privacy compromising practices with rigorous regulation and oversight.


[3] Daniel J. Solove, Conceptualizing Privacy, California Law Review, Vol. 90
[6] Helen Nissenbaum, “A Contextual Approach to Privacy Online,” Daedalus140 (4), Fall 2011
[7] (DHS adoption)