Could Domestic Surveillance Drones Spur Tougher Privacy Laws?

[Eugen Leitl]

http://spectrum.ieee.org/automaton/robotics/military-robots/could-domestic-surveillance-drones-spur-tougher-privacy-laws

Could Domestic Surveillance Drones Spur Tougher Privacy Laws?

POSTED BY: Evan Ackerman  /  Mon, December 19, 2011

Have you ever been spied on by a surveillance drone? No? Are you sure? Maybe
it looked like a hummingbird. Or an insect. Or maybe it was just really high
up. Maybe there's one looking in your window right now, and if so, there's no
law that says it shouldn't.

In a recent article in the Stanford Law Review, Ryan Calo discusses how
domestic surveillance drones would fit into the current legal definitions of
privacy (and violations thereof), and how these issues could inform the
future of privacy policy. The nutshell? Surveillance robots have the
potential to fundamentally degrade privacy to such an extent that they could
serve as a catalyst for reform. 

Domestic surveillance robots aren't as much of an issue now as they could be,
thanks mostly to the stick-in-the-muddedness of the FAA that keeps unmanned
aircraft from doing anything exciting. But eventually, that's going to
change, and there are already precedents (legal ones) for how domestic
agencies might (read: will) start using robots. Basically, there seems to be
essentially no legal restrictions which would prevent the police from having
drones flying around all the time, watching people.

Clearly, this is something that we as a society should discuss, and we may
decide this kind of surveillance should be illegal, or at least restricted to
some extent, especially since it's getting easier and easier to build or buy
camera-capable flying robots. In the near future, celebrities (like me) will
be constantly surrounded by a swarm of face-reading, photo-snapping
autonomous robots that will necessitate the development of anti-surveillance
drone drones, loaded up with little miniature air-to-air missiles, which
themselves are little flying robots.

Of course, all this goes beyond surveillance and drones. We've got these same
sorts of legal issues popping up all over the place with regard to to
robotics, as technology fast outpaces the limited amount of foresight that
was employed when coming up with policies meant to manage current
technological issues as opposed to future ones. And as we've mentioned
before, there's a risk that reactionary (as opposed to proactive) policies
could seriously undermine the robotics industry, which is why forethought is
so important.

You can read the rest of Ryan Calo's article, "The Drone as Privacy
Catalyst," at the link below.

[ Stanford Law Review ]

http://www.stanfordlawreview.org/online/drone-privacy-catalyst

The Drone as Privacy Catalyst

December 12, 2011   64 Stan. L. Rev. Online 29   Essays

by M. Ryan Calo

Director for Privacy and Robotics, Center for Internet & Society

Associated today with the theatre of war, the widespread domestic use of
drones for surveillance seems inevitable. Existing privacy law will not stand
in its way. It may be tempting to conclude on this basis that drones will
further erode our individual and collective privacy. Yet the opposite may
happen. Drones may help restore our mental model of a privacy violation. They
could be just the visceral jolt society needs to drag privacy law into the
twenty-first century.

Samuel Warren and Louis Brandeis knew what a privacy violation looked like:
yellow journalists armed with newly developed binstantaneous photographsb
splashing pictures of a respectable wedding on the pages of every
newspaper.[1] Their influential 1890 article The Right To Privacy
crystallized an image of technology-fueled excess, which the authors
leveraged to jump-start privacy law in the United States.

But what do privacy violations look like today? They tend to be hard to
visualize. Maybe somewhere, in some distant server farm, the government
correlates two pieces of disparate information. Maybe one online advertiser
you have never heard of merges with another to share email lists. Perhaps a
shopperbs purchase of an organic product increases the likelihood she is a
Democrat just enough to cause her identity to be sold to a campaign. At most
one can picture the occasional harmful outcome; its mechanism remains
obscure.

It is hard to know exactly what role the inscrutability of privacy has played
in the development of contemporary privacy law. But the law has clearly
stalled. Tort recovery founders on the question of damages. Privacy statutes
tend to respond to specific incidences or abuses: for instance, no provider
of videos (broadly defined) may release costumer rental history because
journalists once managed to procure a list of the videos enjoyed by a Supreme
Court nominee. And it must be possible for officers practically to glimpse
the proverbial blady in her saunab before the Fourth Amendment places serious
limits on the deployment of surveillance technology.[2]

The development of American privacy law has been slow and uneven; the
advancement of information technology has not. The result is a widening chasm
between our collective and individual capacity to observe one another and the
protections available to consumers and citizens under the law. We are only
now, in 2011, revisiting The Electronic Communications Privacy Act, which
controls the circumstances under which the government can intercept or access
electronic communications such as emails. The Act was passed in 1986. At the
time, lawmakersb kids were trading in their Walkman for a Discman. Al Gore
had only just invented the Internet.[3]

Recent shifts in technology and attendant changes to business practices have
not led to similar shifts in privacy law, at least not on the order of 1890.
Computers, the Internet, RFID, GPS, biometrics, facial recognitionbnone of
these developments has created the same sea change in privacy thinking. One
might reasonably wonder whether we will ever have another Warren and Brandeis
moment, whether any technology will dramatize the need to rethink the very
nature of privacy law.

One good candidate is the drone. In routine use by todaybs military, these
unmanned aircraft systems threaten to perfect the art of surveillance. Drones
are capable of finding or following a specific person. They can fly patterns
in search of suspicious activities or hover over a location in wait. Some are
as small as birds or insects, others as big as blimps. In addition to
high-resolution cameras and microphones, drones can be equipped with thermal
imaging and the capacity to intercept wireless communications.

That drones will see widespread domestic use seems inevitable. They represent
an efficient and cost-effective alternative to helicopters and airplanes.
Police, firefighters, and geologists willband dobuse drones for surveillance
and research. But drones will not be limited to government or scientific
uses. The private sector has incentives to use drones as well. The media, in
particular, could make widespread use of drones to cover unfolding police
activity or traffic stories. Imagine what drones would do for the lucrative
paparazzi industry, especially coupled with commercially available facial
recognition technology.

You might think drones would already be ubiquitous. There are, however,
Federal Aviation Administration restrictions on the use of unmanned aircraft
systems, restrictions that date back several years. Some public agencies have
petitioned for waiver. Customs and Border Protection uses drones to police
our borders. Recently the state of Oklahoma asked the FAA for a blanket
waiver of eighty miles of airspace. Going forward, waiver may not be
necessary. The FAA faces increasing pressure to relax its restrictions and is
considering rulemaking to reexamine drone use in domestic airspace.[4]

Agency rules impede the use of drones for now; United States privacy law does
not. There is very little in our privacy law that would prohibit the use of
drones within our borders. Citizens do not generally enjoy a reasonable
expectation of privacy in public, nor even in the portions of their property
visible from a public vantage. In 1986, the Supreme Court found no search
where local police flew over the defendantbs backyard with a private
plane.[5] A few years later, the Court admitted evidence spotted by an
officer in a helicopter looking through two missing roof panels in a
greenhouse.[6] Neither the Constitution nor common law appears to prohibit
police or the media from routinely operating surveillance drones in urban and
other environments.[7]

If anything, observations by drones may occasion less scrutiny than manned
aerial vehicles. Several prominent cases, and a significant body of
scholarship, reflect the view that no privacy violation has occurred unless
and until a human observes a person, object, or attribute.[8] Just as a dog
might sniff packages and alert an officer only in the presence of contraband,
so might a drone scan for various chemicals or heat signatures and alert an
officer only upon spotting the telltale signs of drug production.[9]

In short, drones like those in widespread military use today will tomorrow be
used by police, scientists, newspapers, hobbyists, and others here at home.
And privacy law will not have much to say about it. Privacy advocates will.
As with previous emerging technologies, advocates will argue that drones
threaten our dwindling individual and collective privacy. But unlike the
debates of recent decades, I think these arguments will gain serious traction
among courts, regulators, and the general public.

I have in mind the effect on citizens of drones flying around United States
cities. These machines are disquieting. Virtually any robot can engender a
certain amount of discomfort, let alone one associated in the mind of the
average American with spy operations or targeted killing. If you will pardon
the inevitable reference to 1984, George Orwell specifically describes small
flying devices that roam neighborhoods and peer into windows. Yet one need
not travel to Orwellbs Oceaniabor the offices of our own Defense Advanced
Research Projects Agencybto encounter one of these machines. You could travel
to one of several counties where American police officers are presently
putting this technology through its paces.

The parallels to The Right to Privacy are also acute. Once journalists needed
to convince high society to pose for a photograph. New technologies made it
possible for a journalist automatically to bsnapb a picture, which in turn
led to salacious news coverage. Americans in 1890 could just picture that
tweedy journalist in the bushes of a posh wedding, hear the slap of the
newspaper the next day, and see the mortified look of the bridal party in the
cover art. Todaybs police have to follow hunches, cultivate informants,
subpoena ATM camera footage; journalists must ghost about the restaurant or
party of the moment. Tomorrowbs police and journalists might sit in an office
or vehicle as their metal agents methodically search for interesting behavior
to record and relay. Americans can visualize and experience this activity as
a physical violation of their privacy.

There are ways that drones might be introduced without this effect. Previous
military technology has found its way into domestic use through an
acclimation process: it is used in large events requiring heightened
security, for instance, and then simply left in place.[10] We could delay
public awareness of drones by limiting use to those that are capable of
observing the ground without detection. But these efforts would take a
knowing, coordinated effort by the government. The more likely scenario, as
suggested by Oklahomabs plan, is one in which FAA restrictions relax and
private and public drones quickly fill the sky.

Daniel Solove has argued that the proper metaphor for contemporary privacy
violations is not the Big Brother of Orwellbs 1984, but the inscrutable
courts of Franz Kafkabs The Trial.[11] I agree, and believe that the lack of
a coherent mental model of privacy harm helps account for the lag between the
advancement of technology and privacy law. There is no story, no vivid and
specific instance of a paradigmatic privacy violation in a digital universe,
upon which citizens and lawmakers can premise their concern.

Drones and other robots have the potential to restore that mental model. They
represent the cold, technological embodiment of observation. Unlike, say, NSA
network surveillance or commercial data brokerage, government or industry
surveillance of the populace with drones would be visible and highly salient.
People would feel observed, regardless of how or whether the information was
actually used. The resulting backlash could force us to reexamine not merely
the use of drones to observe, but the doctrines that today permit this use.
 

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev.
193, 195 (1890).