Drones: The Looming Threat
Unmanned aircraft, otherwise known as drones, are becoming common. Many are familiar with America’s use of armed drones in Pakistan, Yemen and elsewhere but drones are also increasingly being used by other parts of government, by companies and individuals.
Drones can be far cheaper to operate than anything that requires an on-board pilot, and they are handy for making maps and taking pictures and videos. The FBI uses a small fleet of drones for law-enforcement surveillance. Customs and Border Patrol uses them to monitor the American border with Mexico. Commercial drones are now regularly used for real-estate photography and to monitor oil and gas pipelines, among many other applications.
The proliferation of drones, which include both small fixed-wing aircraft and small rotorcraft with multiple propellers, raises some vexing public-policy questions.
At issue is also the way some drones can loiter overhead for long stretches, engaging in what is called “persistent surveillance”. As drones—and other airborne surveillance platforms, such as circling manned aircraft and lighter-than-air craft—become cheaper and more effective, persistent aerial surveillance could become the norm, and no privacy or transparency measures currently exist in the law.
The current state of the law, both legislation and court decisions, is poorly suited to deal with persistent surveillance. This is because privacy law is tailored to questions of whether one is in public, an open field, or in a space where one has a “reasonable expectation of privacy”. The Supreme Court has, at times, expanded such spaces, for instance finding in 1967 that the FBI cannot eavesdrop on conversations in telephone booths without a warrant. But in this era of “big data”, the line between public and private can no longer be delimited by physical boundaries.
Complicating matters, there is no clear line between episodic surveillance, a snapshot, and persistent surveillance even though the effects are profoundly different. It’s the difference between a snapshot and an overhead video that shows the comings and goings of everybody in a city over the course of a week. In such a video, a so-called “pattern-of-life” emerges. Any still frame from the video might be a defensible incursion on privacy, yet the whole video is something more than the sum of these parts.
Discussions about privacy often involve the question of why it is something worth protecting. People tend to invoke Louis Brandeis and Samuel Warren’s definition of privacy in 1890 as the “right to be let alone”. So persistent surveillance, whether through monitoring internet browsing habits or from a drone overhead, undermines the formation of liberal individuals in the way that an over-reliance on GPS undermines the formation of a sense of direction.
It is worth noting that not all persistent drones are a threat to privacy, NASA’s Global Hawk Earth science missions, for instance, are exactly what they claim to be: new tools for studying hurricanes and other natural phenomena. But it is essential that these questions about drones and privacy are being asked now.
