Legislation Would Upend Privacy Standards, Create Significant Challenges for Basic UAS Operations and Raise First Amendment Concerns

Silicon Valley and Washington D.C., March 29, 2017 – The Commercial Drone Alliance today announces its opposition to The Drone Aircraft Privacy and Transparency Act, introduced by Senator Edward J. Markey (MA) and Representative Peter Welch (VT). 

The Drone Aircraft Privacy and Transparency Act would create an additional layer of regulation that departs significantly from our existing technology-neutral standards. Instead, we should apply our existing laws to protect the public, which courts have done for similar advances in photography-related technologies for decades.

Importantly, our existing standards are technology neutral, covering photos captured by hand-held cameras, smartphones, telephoto lenses, helicopters, and UAS without distinction. These rules are further strengthened by prohibitions against trespassing, stalking, and peeping toms.

The Commercial Drone Alliance is concerned that the legislation will upend our well-established and robust privacy standards, creating significant operational barriers and competition issues for even basic UAS flights.

“The legislation requires operators to make publicly available, via the Federal Aviation Administration, listings of their future operations, such as where, when, and for what purpose the drone is flying,” said Michael Latiner, chief strategy officer, Uplift Data Partners.  “This requirement removes the discretion of the operator on the ground to determine the safest and most efficient flight paths, and will be incredibly onerous for operators of all sizes.”   

The legislation also requires the disclosure of the technical capabilities of the drone and the types of cameras and payloads an operator is using. If enacted, the bill would thus require the release of sensitive business information regardless of whether a UAS flight creates any privacy concern. 

The disclosures also create a significant administrative burden for UAS operators and the federal government, which would need to accurately and appropriately maintain, use, protect, and share this information, without a clear sense of how this information will meaningfully protect the public.

“The integration of drones into our National Airspace will save countless lives and have a significant economic impact here in the United States,” said Gretchen West, Co-executive Director, Commercial Drone Alliance. “Adding more regulations or special permissions to operate drones would further stifle the benefits of their use and may lead companies to shift business overseas.”

“To the extent the bill’s authors would like to see new drone privacy standards, an immediate option would be to support the voluntary best practices,” said Lisa Ellman, co-executive director, Commercial Drone Alliance. “These were agreed to by many members of industry and civil society last year as part of the National Telecommunications and Information Agency’s (NTIA) multi-stakeholder process on UAS privacy, transparency, and accountability.”

The privacy best practices set agreed-upon boundaries for UAS operations. These include avoiding the collection of data when the drone operator knows a person has a reasonable expectation of privacy and avoiding disclosure of personal information when it is not necessary to fulfill the stated purpose for which the drone is used. 

Before Congress enacts new regulation, these best practices should be given an opportunity to be introduced to the general public. Allowing these practices to succeed would be consistent with the goals of the NTIA’s multi-stakeholder process, which sought to find the right balance between privacy regulation and the continued development of this nascent and dynamic industry.

Finally, the Commercial Drone Alliance is troubled by the legislation’s implications for the First Amendment to the Constitution.  

By potentially requiring journalists to provide prior notice of the specific locations where UAS will be deployed, the bill creates a set of requirements that jeopardize journalists’ First Amendment rights. As one court has said, “On the public street, or in any other public place, the plaintiff has no right to be alone; and it is no invasion…to take his photograph in such a place, since this amounts to nothing more than making a record…of a public sight which anyone would be free to see.”  Mark v. Seattle Times, 96 Wash. 2d 473, 497 (1981). Even though the bill creates some protections for First Amendment activities, where the bill’s protections extend is unclear, creating significant uncertainty for journalists that will curtail legitimate First Amendment activities.

We look forward to working with Senator Markey and Congressman Welch to help educate the public about drones and privacy. We urge the members to keep these considerations in mind before moving forward with the Drone Privacy and Transparency Act.