Drones and Aerial Surveillance: Considerations for Legislators

Abstract

The looming prospect of expanded use of unmanned aerial vehicles, colloquially known as drones, has raised understandable concerns for lawmakers. Those concerns have led some to call for legislation mandating that nearly all uses of drones be prohibited unless the government has first obtained a warrant. Privacy advocates have mounted a lobbying campaign that has succeeded in convincing thirteen states to enact laws regulating the use of drones by law enforcement, with eleven of those thirteen states requiring a warrant before the government may use a drone. The campaigns mounted by privacy advocates oftentimes make a compelling case about the threat of pervasive surveillance, but the legislation is rarely tailored in such a way to prevent the harm that advocates fear. In fact, in every state where legislation was passed, the new laws are focused on the technology (drones) not the harm (pervasive surveillance). In many cases, this technology-centric approach creates perverse results, allowing the use of extremely sophisticated pervasive surveillance technologies from manned aircraft, while disallowing benign uses of drones for mundane tasks like accident and crime scene documentation, or monitoring of industrial pollution and other environmental harms. Legislators should reject a warrant-based, technology-centric approach as it is unworkable and counterproductive. Instead, legislators should follow a property rights-centric approach, coupled with limits on persistent surveillance, data retention procedures, transparency and accountability measures and a recognition of the possibility that technology may make unmanned aerial surveillance more protective of privacy than manned surveillance.

This paper makes five core recommendations: 1. Legislators should follow a property-rights approach to aerial surveillance. This approach provides landowners with the right to exclude aircraft, persons, and other objects from a column of airspace extending from the surface of their land up to 350 feet above ground level. Such an approach may solve most public and private harms associated with drones. 2. Legislators should craft simple, duration-based surveillance legislation that will limit the aggregate amount of time the government may surveil a specific individual. Such legislation can address the potential harm of persistent surveillance, a harm that is capable of being committed by manned and unmanned aircraft. 3. Legislators should adopt data retention procedures that require heightened levels of suspicion and increased procedural protections for accessing stored data gathered by aerial surveillance. After a legislatively determined period of time, all stored data should be deleted. 4. Legislators should enact transparency and accountability measures, requiring government agencies to publish on a regular basis information about the use of aerial surveillance devices (both manned and unmanned). 5. Legislators should recognize that technology such as geofencing and auto-redaction, may make aerial surveillance by drones more protective of privacy than human surveillance.

Keywords: drones, surveillance, law enforcement, unmanned aircraft systems, unmanned aerial vehicles, big data, persistent surveillance, pervasive surveillance, greg mcneal, privacy, personal information

JEL Classification: K1, K14