Drone Privacy and Security Issue Solutions

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In early 2018, Eric Buenz and his family were having a peaceful stroll in the beach of Adele Island in Abel Tasman National Park, New Zealand. The serenity of this moment was suddenly interrupted when they noticed the presence of a drone flying above them, easily detected by its characteristic buzzing sound. For the family, it was obvious that the drone was filming them. Without any knowledge of who was controlling the drone or why they were being filmed, the experience left them with a disconcerting feeling that their privacy had been violated.

Drones are everywhere

The experience of Eric Buenz is only one of many incidents that get reported year after year from people who have expressed concerns on their security and privacy because of the presence of drones. In October 2018, a rescue operation for a shark bite victim in San Diego, California was hampered by the presence of a drone near the landing area of a medical response helicopter. In May of the same year, a homeowner in Bradenton, Florida, shot a drone flying over his fenced-in property over fears for his family’s privacy.

One of the worst cases of voyeurism by drones happened in 2016 in Orem, Utah. A man saw a drone flying outside his bathroom window and around his house, prompting him to chase it down with his car. When he finally caught up and reviewed the contents of its storage, he found several photos and videos of people inside their apartments, mostly recorded through their windows.

This was deliberate peeping and the owner even tried to conceal his activities by taping over the drone’s safety lights. The drone pilot in question, 40-year-old Aaron Foote, pleaded no contest to voyeurism by electronic equipment.

These cases are merely the highlights of a long list of reported incidents regarding drones. They have been sighted in restricted airspace, near manned aircraft, flying over crowds of tourists, over the backyards of people, and near military installations. With drones becoming even more affordable and accessible to the general public, the concerns over how they can violate the privacy and security of people have continued to grow. Is there a way for legislation or technology to regulate drone activities and address these concerns?

Drone regulation is not all-encompassing and is poorly implemented

The landmark legislation for the regulation of drone activities in the United States was first implemented on February 2016, which requires all drones that weigh between 0.55 and 55 lb be registered with the FAA. This ruling went through a brief period of contention when a few drone operators argued that it conflicted with the FAA Modernization and Reform Act of 2012, which stripped the FAA of any regulatory power over model aircrafts. However, the status quo was firmly established when President Trump signed the National Defense Authorization Act of 2017. Among other provisions of this act, it requires both commercial and recreational drone pilots to register their drones with the FAA if it weighs more than 0.55 lbs.

part 107

The Part 107 rules by the FAA are another relevant piece of legislation that regulate drone activities. Under the Part 107 rules, commercial drone pilots need to get a drone license from the FAA by passing a standardized knowledge test. Part 107-licensed pilots are also subject to a set of rules and restrictions on drone flight, such as not being able to fly in restricted airspace, above 400 feet, or over crowded areas.

The Part 107 rules have gone a long way towards making drone flight a much safer activity. However, these rules currently only apply to commercial drone activity. The recreational sector, which comprise some of the most vocal members of the drone community, remain largely unregulated.

Implementing regulations on drone activity has also been a problematic matter. Since the FAA has limited power to take appropriate actions when drone restrictions are violated, implementation has largely fallen into the hands of local law enforcement. However, law enforcement is still unfamiliar with laws regarding drone flight, making implementation ineffective. Most times, they also have their hands full responding to incidents that they perceive to be more urgent or important than reports of wayward drones.

Despite the number of drones registered with the FAA hitting the 1-million mark at the start of 2018, there has only been 1 documented case of a drone pilot getting fined for violating the Part 107 rules. Jeffrey Slentz, who was not a licensed commercial drone pilot, was found flying his DJI Phantom 3 over Kauffman Stadium in Missouri, prompting law enforcement to order him to stop. He was ultimately just given a warning letter by the FAA which recommended that the apply for the license.

This was nothing more than a slap on the wrist. It was also an incident that happened very early in the implementation of the Part 107 rules. The lack of any heavy penalty or succeeding citations of violation (of which there were probably many) emphasize how poorly implemented the rules on drone flight have been. This trend may have been beneficial for drone-based enterprises who strive to grow their business, but it has not helped the drone community improve their public perception.

Legislative efforts are slow

Although it has been poorly implemented, the Part 107 restrictions on drone flight have provided a good framework for making drones safer for the general public. However, they have no provisions regarding privacy. Currently, there are no rules on whether drones can fly over private property without consent, or if they can capture images of sensitive information such as license plates or house numbers. In an age when drones are getting equipped with better cameras and sensors, privacy laws must be developed urgently.

Unfortunately, progress on this has been very slow. In March of 2017, two Democratic lawmakers proposed “The Drone Aircraft Privacy and Transparency Act”. The goal of this legislation was to create and implement standards for informing the public about the location and ownership of any unmanned aerial vehicle. According to the proposal, drone operators will have to publicly disclose where, when, and for what purpose they will be flying their drones, as well as their drones’ technical specifications, camera type, and any other payload they will be using.

The proposed legislation was met huge resistance from the drone community. The Commercial Drone Alliance released a statement opposing certain provisions in the proposal that would serve to stifle the benefits of using drones for businesses and would release sensitive business information to the public. Moreover, the bill would create a burden on both the federal government and drone operators to maintain, protect, and share this public information.

Instead, the organization has made a counter-proposal calling for the public release and promotion of a set of voluntary best practices for drone pilots. Drafted by the National Telecommunications and Information Administration (NTIA) and agreed to by many members of industry and civil society, these best practices look very similar to established etiquette for photography. Among the guidelines included in this list of best practices are that drone pilots should ask for the permission of their subjects before taking a photo or video, and that they should not fly over other people’s private property without permission.

The FAA is hands-off when it comes to privacy issues

Among the many problems concerning privacy issues regarding drone use is the hands-off approach of the FAA when it comes to addressing privacy concerns in their drone rules and restrictions. In fact, the Electronic Privacy Information Center (EPIC) has challenged the FAA several times in the past few years over the FAA’s failure to consider privacy in the rulemaking process for the drone industry. In response, the FAA has noted “that privacy concerns have been raised about drones”, but these privacy issues “are beyond the scope of this rulemaking”.

Many users have noted that there are currently existing privacy rules that are still applicable to drone photography, and that what pilots choose to do using their drones was outside the jurisdiction of the FAA. After all, photographers can choose to capture photos and videos from a car or a helicopter without having to deal with any vehicle licensing or aviation-based authority. In the same way, the FAA can only dictate who gets to fly a drone, how fast it can go, where it can go, and when it can operate. It currently enforces few restrictions on what drone pilots can do.

In a petition submitted by EPIC to the FAA, they cited how drones presented a unique threat to privacy due their design, which allowed them to operate virtually undetected in urban and rural environment. Moreover, sophisticated technology such as infrared cameras, GPS sensors, and high-resolution cameras can be integrated with facial recognition technology or automated license plate readers. This can give drones an unparalleled ability to identify and track individuals. Their highly intrusive nature, as well as their ability to access private areas without revealing the identity of their operators, have made them a special case requiring a unique approach.

The assertions made by EPIC present a good case for how there has been no previous technology that can compromise privacy and security in the same way that drones can. They are incredibly small, maneuverable, and can be controlled remotely. Until such time that the legislators and the community alike recognize that the old rules may not be enough to sufficiently regulate drone flight, there will probably be no meaningful legislation passed to address the public concerns on privacy.

Taking the fight to the drones

Public perception and acceptance of drones has become so poor in the recent years that many people have resorted to drastic measures to protect themselves from the intrusive presence. According to reports, Dutch law enforcement have started to train eagles as a deterrent from unauthorized drones. According to them, drones have been increasingly used to commit crimes such as smuggling of illegal goods.

A father in Hilview, Kentucky, was called by his daughter when she saw a drone flying overhead their lawn while she was sunbathing. The man proceeded to shoot down the drone with a shotgun, citing that their family expected privacy within the confines of their fenced-in property. Over the past years, this has been a common occurrence – a New Jersey resident shot down a drone which turned out to belong to a neighbor, while a Californian shot down a drone that seemed like it was a “CIA surveillance device”.

In all three incidents cited above, the story ended with the shooters getting charged with either criminal mischief, endangerment, or discharging a weapon for an unlawful purpose. On the side of the drone owners, their defense has always been along the lines of the shooter not needing to use force as the drones did not present any threat to them or their property.

However, the question remains: how are normal people living their day to day lives able to tell if a drone flying above their property constitutes a threat? Unlike pedestrian trespassers, the options for a homeowner to remove a drone hovering over their property are severely limited. Further muddling this issue is the fact that the FAA has jurisdiction over all airspace, but it is the local government who can enact laws that determine property rights.

Some local government have started to come up with their own measures to address the concerns over privacy due to drones. Oklahoma has considered passing a bill that will authorize homeowners to shoot down drones, while some other lawmakers have proposed allowing only drones without cameras to fly over private property. In any case, it is still uncertain if these local laws will take precedence over the what the FAA enforces. After all, they are the body mandated by the federal government to control all the country’s airspace.

What can we do as responsible drone pilots?

For responsible drone pilots, whether flying commercially or recreationally, privacy concerns have been one of the biggest difficulties in improving public acceptance of drone technology. To best allay the fears of the general public, we need to recognize that these concerns are valid and that the responsibility to address these concerns also lie in the shoulders of the drone pilots. These are some of the best practices that you can do:

1. Check with local laws

With the increasing concerns over privacy and security, local governments have started to come up with different rules and restrictions regarding drone flight. Before you fly your drone, make sure to brush up on local laws so that you will avoid having conflicts with law enforcement. Again, this is your responsibility as a drone pilot – ignorance of the law is not an excuse.

2. Seek the permission of property owners

If you simply must fly over someone else’s private property, then it is best to seek the permission of the property owner. This is especially important for commercial drone pilots who are doing aerial shots or roof inspection jobs. An agreement – whether verbal or written – protects you, your client, and the property owner from potential lawsuits. This is also an act of courtesy that can put to rest the common fears of the public when it comes to drone use. You can consider this an act that greatly uplifts the image of the drone community.

3. Encourage community-based regulation

As emphasized by the Commercial Drone License, it will be better for the drone community to adopt voluntary best practices to address the most common public concerns that are outside of the scope of current legislation. There are several locally based drone communities who have been implementing these best practices for a couple of years. However, these efforts are apparently not enough.

The heads of such communities now have a bigger responsibility to promote good drone flight etiquette among their members, in a bid to improve public perception of the industry.

4. Support better legislation

Legislation on drone rules and restrictions can be two-edged sword: it may enhance the public’s confidence that drones are operating under strictly implemented standards, but it may also stifle what drone operators can do. It may also be counter-productive to the government’s drive to promote drone-based commerce and entrepreneurship.

However, we believe the we can agree to one thing: a comprehensive law regulating drone use needs to be developed and has become even more of a necessity in view of the increasing number of drones being purchased worldwide.

Final thoughts

Here’s an undeniable fact: drones are here to stay. From their beginnings as surveillance tools by the military, they have evolved to become very accessible piece of technology. With drone sales increasing year after year and more than 1 million drones registered in the US alone, it is high time that standards on drone use are implemented.

Privacy has been one of the most oft-discussed areas of concern when it comes to drone use. Unfortunately, there has been a lot of contention regarding who will implement and enact the standards on privacy. It has been argued numerous times that the current laws on privacy will suffice to control the drone industry, but we must disagree. There has been no other technology before drones which has the potential of violating personal privacy to the same degree that a drone can.

In October of 2018, the Senate passed the Drone Aircraft Privacy and Transparency Act. However, it was far from the initial draft made by Markey and Welch. This version merely listed the risks of drone surveillance without establishing any privacy safeguards. If this version of the bill goes into law, it will be another insufficient solution to what is currently the biggest problem of the drone industry. This only goes that there is still a very long way to go, and that progress will continue to be painfully slow.

Note: This article is for information purposes only. It does not constitute legal advice.