Two years ago, the U.S. Congress mandated [PDF] that the Federal Aviation Administration integrate robotic aircraft into national airspace by 2015. The FAA has since taken only baby steps toward that goal, but the topic has already sparked much debate—and worry. Initially, the agency, which has been grappling with this issue for the past decade, was focused on avoiding crashes and collisions. But the emphasis has shifted. “In the past year, it’s become more about privacy than safety,” says Brendan Schulman, special counsel at the law firm Kramer, Levin, Naftalis & Frankel, who is defending a client against the FAA in its first civilian drone case. People just don’t want snoopy robots spying on them.
Commentator Charles Krauthammer summed up that sentiment on Fox News in 2012 when he said, “I would predict—I’m not encouraging—but I predict the first guy who uses a Second Amendment weapon to bring a drone down that’s been hovering over his house is going to be a folk hero in this country.” Don’t dismiss such fiery talk as the ravings of a pundit bent on making news. Indeed, there have already been some domestic drone downings: An animal-rights group attempting to document the cruelty of “pigeon shoots” has had a camera-equipped multicopter blown out of the air more than once.
That some shotgun-toting bird hunters would shoot down a small, low-flying drone used to expose their questionable activities might be predictable enough. But those hunters are just the forward guard in a wider campaign meant to signal outrage, typified by the town of Deer Trail, Colo., which has been debating whether to issue drone-hunting licenses.
Something close to these Colorado residents’ ire could be heard last year during congressional hearings on the domestic use of drones. Rep. Louis Gohmert (R-Texas) asked the assembled legal and technical experts, “Can you shoot down a drone over your property?” (He got no answer.) In response to all this vigilante fervor, the FAA issued stern warnings against firing at unmanned aircraft.
A lot of opposition is also being expressed without the threat of 12-gauge antiaircraft fire. For example, public objections caused Seattle’s mayor to stop his police department’s use of small drones a little less than a year ago. About the same time, Charlottesville, Va., became the first U.S. municipality to pass an antidrone resolution. Then Northampton, Mass., followed suit. Many states have also legislated against drone use in an effort to safeguard privacy.
Northampton’s antidrone resolution is especially interesting because it questions the legal basis for extending the FAA’s jurisdiction to the very low altitudes where diminutive robotic aircraft typically fly. “Historically, landowners own ‘to the heavens,’ ” says Paul Voss, an engineering professor at Smith College, in Northampton, who helped draft his town’s resolution. “There’s always been contention about altitudes less than 500 feet, especially close to airports…. All of a sudden, in 2007, the FAA says, ‘We own everything down to the grass.’ ”
Voss is troubled about this for many reasons, including what the FAA’s assertion might mean for the expansion of surveillance given that the U.S. Supreme Court has held that citizens should have no expectation of privacy when their activities can be observed from public airspace. “That little thing flying low can capture a lot of stuff—recording conversations, sniffing things, looking into buildings,” says Voss. “When all that’s public airspace, it’s really disturbing.”
Ryan Calo, a professor of law at the University of Washington, in Seattle, calls robotic aircraft a “privacy catalyst” because people have responded to them more strongly than to other kinds of surveillance technology. “You can visualize it, unlike what the [National Security Agency] is doing,” says Calo. “You get this visceral reaction to drones. Drones are part of a larger disconnect between how quickly surveillance technology evolves and how slowly privacy law does.”
Calo would like to see the FAA address privacy concerns as it formulates its new rules, at least as a stopgap measure until lawmakers can pass legislation. Last year Rep. Ted Poe (R-Texas) introduced one such bill, HR 637, which hasn’t yet come up for a vote. So the needed laws might be slow in coming. But Calo says people can guard at least some of their privacy in the meantime using existing laws against harassment or “intrusion on seclusion.”
Although it will no doubt take more than a year before the United States will get comprehensive regulations for the operation of large, high-flying unmanned aircraft, the FAA should very soon issue notice about the rules governing small systems. The specifics are anyone’s guess right now, but when the FAA does make this announcement, two things are for sure: The word drones won’t appear anywhere in it, because that label is so heavy with connotations of their controversial use by the CIA and the U.S. military overseas; and whatever the new regulations allow or forbid, they will cause this long-simmering issue to boil over.
I would predict—I’m not encouraging—but I predict some enterprising online ammunition dealer will start selling “drone shot” any time now.
For more about the author, see the Back Story, “Drone’s-Eye View.”
This article originally appeared in print as “Open Season on Drones?”
A correction to a photo credit was made on 02 January 2014.