Why Drones May Bring a Renaissance, Not Erosion, of Privacy

Eugen Leitl eugen at leitl.org
Wed Feb 22 03:13:40 PST 2012


http://www.theatlantic.com/technology/archive/2012/02/why-drones-may-bring-a-renaissance-not-erosion-of-privacy/253400/

Why Drones May Bring a Renaissance, Not Erosion, of Privacy

By Alexis Madrigal

Feb 21 2012, 3:42 PM ET

Drone technology can easily erode the scraps of privacy we have left, but the
creepiness of the eyes in the sky could force us to rethink our current legal
framework for data collection.

You know that animal feeling you get when you're being watched? That
horror-movie tingle along the back of the neck, that neolithic desire to look
around and find the pair of eyes that belong to the creature that's stalking
you?

Well, you should probably experience that every day on the Internet, but you
don't. That's always exasperated privacy advocates who wonder why we all
don't care more about people tracking across the interweb. But that may
change, if Stanford's Ryan Calo, who researches privacy at the Center for
Internet and Society, is right.

Calo believes that drones could be a catalyst to update and increase our
privacy protections. That's because drones are "the cold, technological
embodiment of observation." They are easy to see and fear, unlike the servers
that track your clickstream across the web. In essence, when people see what
drones can do, they'll run screaming to the courts and legislatures with a
ferocity that purely digital privacy erosion has never generated.

Flying drones are everywhere these days. Developed largely under the aegis of
the military, they are making their way into civilian life, slowly but
surely. Yesterday, the New York Times even hosted a roundtable discussion
about the impact the robots are likely to have.

Drones, in my mind, make it clear how many of our feelings about privacy rest
on the assumption that surveillance is time consuming or difficult. If
someone smokes a joint in her backyard, she is making the (pretty good)
calculation that a police officer is not watching. In our cars, we assume we
can quickly send a text message at a red light or not wear our seatbelts for
a few minutes or drive a few miles over the speed limit. We don't expect that
someone is watching our every move and that gives the law some give, a
bendiness that reflects it's a human construction.

But these little flying video and audio recorders, paired with powerful data
analysis tools, make previously unthinkable levels of surveillance possible,
even easy. Before the Internet, tracking someone's reading and shopping
activities would have been nearly impossible without a private detective.
Now, new online tracking tools make it possible to easily capture every page
that you visit on the Internet. So companies do. Technology doesn't create
entirely novel privacy questions, but it tilts the playing field towards or
away from increased privacy without many citizens (or courts!) really
noticing that anything had changed.

Let's look at one example of how drones change the privacy equation. We tend
to think of our homes as having a perimeter. Property maps are
two-dimensional, we talk about property lines as if they were burned into the
ground. There are access points in two-dimensional space -- paths and roads
-- that channel visitors through a small number of places. We can build
fences or plant hedges and they need not be high to mark the territory out.

A flying drone with a zoom lens, though, makes that whole sense of
two-dimensional privacy an anachronism. If one wanted privacy from the
government or other citizens, one would have to defend the entire volume of
airspace reaching up from one's property to several hundred feet up, if not
much farther. This vastly increases the cost of physically hiding one's
activities. And, vis a vis law enforcement, the idea of "plain sight" hardly
even makes sense anymore, as Jonathan Zittrain pointed out yesterday:

    The prospect of constant government surveillance of citizens through
cheap drones tests the "plain sight" doctrine by which, under our
Constitution, police are generally allowed to scope out whatever is in plain
view, without requiring a warrant. Supercharged technologies face some limits
-- extra-sensitive remote microphones, or heat signature detectors of the
sort that might be pointed at the wall of a home to detect marijuana-growing
lamps in use inside.

If a drone with a zoom lens happens to be cruising by your 100-acre farm and
spots you smoking a joint on it, were you in plain sight? What if it were
technically outside your property line or far above it?

Calo doesn't think we can look to the current body of privacy law for much
help in keeping our lives private.

    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 defendant's backyard with a private plane. A
few years later, the Court admitted evidence spotted by an officer in a
helicopter looking through two missing roof panels in a greenhouse. Neither
the Constitution nor common law appears to prohibit police or the media from
routinely operating surveillance drones in urban and other environments.
[emphasis mine]

Yet we know that if drones are operated in populated areas, they will end up
doing all kinds of collateral surveillance. And nothing legal stands in their
way. 

    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. 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.

Calo, for one, is not despairing. The types of privacy issues drones create
are easier to parse than ones that occur between you and your web browser, so
are more likely to create a public outcry. Online privacy violations "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 shopper's
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.

But drones are a whole different story, Calo argues. If drones were to come
into common usage, "people would feel observed, regardless of how or whether
the information was actually used," he wrote. "The resulting backlash could
force us to reexamine not merely the use of drones to observe, but the
doctrines that today permit this use." In other words, perhaps the creepiness
of drones would cast wider doubt on the enterprise of personal data
collection.

That's the optimistic scenario. The other one you may have already read:

    The black mustachio'd face gazed down from every commanding corner. There
was one on the house front immediately opposite. BIG BROTHER IS WATCHING YOU,
the caption said, while the dark eyes looked into Winston's own... In the far
distance, a helicopter skimmed between the roofs, hovered for an instant like
a bluebottle, and darted away again with a curving flight. It was the police
patrol, snooping into people's windows.

Images: 1. Reuters. 2. Reuters. 3. flickr/sidkites. The first two images have
been digitally manipulated.





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