[drone-list] NYT: How much UAV surveillance are you comfortable with?

Tue Feb 21 05:43:03 PST 2012

There is no real Constitutional question with regard to prohibiting individual or corporate surveillance carried out via drones. On the contrary, private individuals/companies using drones to video or photograph people and objects in public places could argue they have a First Amendment right to do so. There are some laws (i.e., state voyeurism laws) that prohibit taking footage of individuals in places in which they may expect privacy, but generally not in public places. I'm not as clear on this, but I believe private entities can use drones to take footage of private property as well, though, again, with some restrictions (i.e., CA Civ. Code 1708.8). 

The Fourth Amendment applies to government surveillance via drones, but in a limited (I would say anachronistic) fashion under Supreme Court interpretations. In Florida v. Riley, police did not need a warrant to conduct aerial surveillance of private property from a helicopter; essentially the Court ruled that private citizens do not own or have privacy rights to airspace roughly 400ft above the property. In Kyllo v. United States, the Supreme Court ruled police did need a warrant to use a thermal imaging camera to peer inside an individual's home. Taken together, these cases suggest the government generally does not need a warrant to use a drone to conduct aerial surveillance over a broad area that includes both public and private property, so long as the drone is not equipped with sensors that can penetrate the walls of homes and other legally recognized private areas (sheds, possibly car interiors, etc.). 

Why are people uncomfortable with drone surveillance? Because drones can quietly watch an entire town for many hours without refueling, enabling a pervasive, secret surveillance that helicopters or traffic cameras cannot match. Low-end models are cheap enough that anyone b a global corporation, your homeowner's association, your creepy neighbor b can purchase a drone (a parrot drone is $300 on Amazon). Importantly, you cannot really avoid a drone, at least not if you're outside. I think people realize there are very few limits on what information can be collected and shared via drones b so what if every time stepped out of the house you were on YouTube? Privacy law is not ready for drones. 

If you're interested, I've written two blog posts on drones and privacy. 
This is the first one: https://www.cdt.org/blogs/harley-geiger/2112drones-are-coming
This is the latest one: https://www.cdt.org/blogs/harley-geiger/092congress-demands-drones-over-america

-
Harley Geiger
Policy Counsel 
Center for Democracy & Technology
202-407-8825
harley at cdt.org

On Feb 19, 2012, at 6:54 PM, M Edward Borasky wrote:

> On Sun, Feb 19, 2012 at 11:44 AM, Martyn Williams <martyn at stanford.edu> wrote:
>> I'm interested in this privacy question and would like to look a bit
>> more closely at it.
>> 
>> Law enforcement, public safety, news organizations, and private
>> companies are already flying over our backyards and taking pictures.
>> 
>> Depending on where you live, Google has even put this online (zoom in on
>> Google Maps and at max zoom it changes from satellite imagery to photos
>> captured by aircraft).
>> 
>> I'm not suggesting everyone is happy with that, but it doesn't seem to
>> provoke the same reaction as the issue of drones.
> 
> I for one am not happy that Google is allowed to perform aerial
> surveillance on citizens of any democracy. It seems to me there's a
> Constitutional question in the USA. The government in theory can't do
> that without a court order. and journalists can in theory be shielded
> by the First Amendment if they keep their act together. But a
> for-profit corporation apparently has to be in violation of some other
> law to incur even a Congressional inquiry, and a private citizen must
> have a *lot* of money to mount a successful civil action against a
> business as huge as Google.
> 
> Some places - Germany, IIRC - have attempted to rein in Google's
> "Street View" surveillance, but I don't think anyone has even broached
> the subject in the USA. We should.
>> 
>> So, what exactly makes us uncomfortable about drones?
>> 
>> Is it that they're anonymous and remote-controlled? That they can stay
>> up for hours? Perhaps it's the link with what we've seen the military
>> doing? Or perhaps it's that they are capturing video and not
>> photographic images.
>> 
>> I don't have any great insight into this, but I think we need to figure
>> out the objections before we can talk about legislation and regulation.
> 
> All of the above. The Constitution protects us from our government in
> theory, but apparently not from corporations large enough to implement
> surveillance for profit.
>> 
>> Personally, I have less problem with a drone being used to follow and
>> catch a criminal after a crime takes place (much like a helicopter is
>> used today) than one patrolling my neighborhood for hours on end
>> monitoring what's happening.
>> 
>> Similarly, I don't want my neighbor hovering a drone above my garden,
>> but if they can get pretty much the same view from hovering near the
>> boundary line then an airspace restriction might be ineffective.
>> 
>> Martyn
>> 
>> 
>> On 02/18/2012 03:55 PM, M Edward Borasky wrote:
>>> The question is not "How Much Am I Comfortable With?" It's "What
>>> actions can I *legally* take to protect my privacy? I'm guessing I
>>> can't block law enforcement drones or interfere with them in any way,
>>> but private sector operation over my property is quite another matter.
>>> 
>> 
>> --
>> Martyn Williams
>> 2012 John S. Knight Journalism Fellow
>> Stanford University
>> @martyn_williams
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> 
> 
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