Unmanned Aircraft–A Winged Threat to Privacy?

By Tom DeCesar, Ed Fishman, Jim Insco, and Marty Stern

It is has been a busy time in the field of unmanned aircraft systems (a.k.a., drones).  The Federal Aviation Administration recently released a Notice of Proposed Rulemaking that would allow the widespread use of small unmanned aircraft for a variety of low-altitude, line-of-site commercial operations–something currently prohibited by the agency.  However, the FAA does not typically deal with privacy issues.  So, while the FAA will regulate the use of these devices, President Obama issued a Presidential Memorandum calling for the National Telecommunications and Information Administration to begin a multi-stakeholder process to outline industry guidelines related to privacy, transparency, and accountability in the use of unmanned aircraft.  (See our recent client alert on the FAA small UAS NPRM and the Presidential Memorandum by clicking here.)  Although the NTIA’s typical focus is on telecommunications issues, it has convened a multi-stakeholder processes to address privacy issues involving such things as mobile app disclosures and facial recognition technologies.

The NTIA recently issued a Request for Comment seeking submissions from interested entities on UAS privacy issues, kick-starting the multi-stakeholder process.  The NTIA seeks comments by April 20, 2015 on a variety of issues related to unmanned aircraft privacy, transparency, and accountability concerns.  Interestingly, the NTIA appears open to the prospect of issuing guidelines for a variety of types of unmanned aircraft–including micro (under 4.4 lbs.), small (under 55 lbs.), and large sizes–even though the FAA’s proposed rulemaking only applies to small UAS.  Perhaps in an attempt to explain why it was tasked with leading the charge on these privacy issues, the NTIA emphasizes the prospect of using unmanned aircraft to provide internet service–an idea several companies have been exploring.

On the substantive privacy issues, the NTIA seeks comment on whether different uses of unmanned aircraft pose variable privacy issues and what mitigation practices could be put in place to stymie invasions of privacy.  In addition, the agency seeks comment on whether transparency could be increased by requiring additional aircraft markings or widespread periodic reporting for major unmanned aircraft operators.  Comments are also requested on how companies using UAS can increase accountability and ensure these privacy guidelines are followed.

Meanwhile, on Capitol Hill, Senator Edward J. Markey (D-MA) and Representative Peter Welch (D-VT) recently proposed expansive legislation on the issue, titled the Drone Privacy and Transparency Act of 2015.  The Act would require a study of how unmanned aircraft can threaten privacy protections and require the Secretary of Transportation to promulgate regulations ensuring unmanned aircraft operator’s compliance with stringent “privacy principles” (despite the FAA’s recognition that it does not have experience dealing with privacy issues).  The Act would also require that before using unmanned aircraft, operators must agree to a data collection statement specifying the types, uses, and storage of information collected from UAS and the proposed scope of UAS operations.  In effect, the bill would reduce the flexibility in UAS operations allowed under the FAA’s proposed regulations, which propose allowing the use of unmanned aircraft without first submitting a proposed plan of operations to the FAA.  In addition, the bill would require law enforcement to obtain a warrant before engaging in generalized surveillance with unmanned aircraft.  Violations would be enforceable by the Federal Trade Commission as an unfair or deceptive practice under the FTC Act and by state officials.  Significantly, the bill would also authorize private suits by injured individuals, with the possibility of attorney fees and statutory treble damages of up to $3000 per violation for intentional conduct, which would raise the specter of class action litigation for UAS privacy breaches.

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