Will Drones Save Privacy Law?
posted by Ryan Calo
Drones are coming to a city near you. On one view, they will further compromise our dwindling privacy. This post explores whether they might instead drag privacy law into the twenty-first century. Thanks to Danielle Citron for the charitable introduction and to everyone at Concurring Opinions for inviting me to guest blog this month.
The military makes widespread use of drones. The Air Force reported that by March of this year, drones had surpassed a million combat hours. Drones are also used within the United States. They patrol both our northern and southern border and have been used by the police in at least three counties. Kashmir Hill at Forbes.com and others have reported the use of smaller drones by News Corp. (which will do wonders, I’m sure, for their existing image).
There is every reason to believe that the domestic use of drones is on the rise. They represent a cheap and efficient alternative to helicopters, planes, even the installation of city-wide camera networks. The greatest impediment to their deployment is the Federal Aviation Administration ban on the technology absent a waiver. Senators Schumer (D-NY) and Wyden (D-OR) and others appear to be gaining traction in their efforts to relax this policy. The state of Oklahoma recently petitioned the FAA for a blanket waiver for the public and private use of drones in an eighty-mile corridor the state has set aside for this purpose.
Although the media mostly covers drones for their capacity to carry out assassinations, their greatest use by far is surveillance. Industrial-grade drones can fly for miles searching for objects of interest or hover at a particular location and report any movement. Not only can they record high-resolution video, but some drones come equipped with thermal-imaging and other sensors capable of seeing what people cannot. There have even been reports of a drone capable of impersonating a cell tower so as to intercept phone conversations.
Some of these activities are surely covered by privacy laws. A surprising number are not. Neither constitutional nor common law, for instance, recognizes a right to privacy in public or from a public vantage. In one famous Fourth Amendment case, the Supreme Court found no search where local police flew over the defendant’s backyard with a private plane. In another, the Court admitted evidence spotted by an officer in a helicopter looking through two missing roof panels in a greenhouse. There are practical hurdles to the use of planes and helicopters. You would not use them to look for unlicensed swimming pools, for instance, because they are expensive to own, maintain, and operate. A single drone could find every pool in a town in one day, flagging the ones with no municipal license on file as it went.
The fact that drones are unmanned presents additional opportunities. I have written about the significant tendency in privacy law and scholarship suggesting that where no human sees any body or information, there has been no harm to legitimate privacy interests. One example is the dog-sniffing cases. No person sees the contents of the suitcase during the sniff and the dog only alerts in the presence of contraband. Police cannot scan a house using thermal imaging devices for fear they will spot the proverbial lady in her daily sauna and bath. But could a drone not fly over a neighborhood looking for and reporting suspicious heat signatures?
It is tempting to conclude that drones will constitute one more nail in the heavy coffin of privacy. I want to explore another possibility. Privacy law arguably entered mainstream thinking in the United States in 1890 with the publication of Samuel Warren and Louis Brandeis’ The Right to Privacy. The authors painted a picture of a contemporary society that relied heavily on a mental image of technology: the novel “inventions and business practices,” the “numerous mechanical devices [that] threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”
As Daniel Solove, Jeff Rosen, Paul Ohm, and others have explored, today’s privacy harms are more complicated. Much of the action occurs in some inscrutable server as enormous databases of information are herded, culled, and linked by invisible algorithms. I suspect that the inability to visualize the processes behind modern privacy harm, this lack of visceral cues, forms a significant part of the reason that privacy law lags so far behind advancements of technology. We need to be able to imagine a Department of Motor Vehicles turning over address information to an abusive ex-spouse or video rental business turning over the rental history of a judicial nominee before we take legislative or judicial action.
The introduction of government and private drones into our cities will feel very different to the public and perhaps to the courts. What data there is suggests that Americans are nervous around robots. They may associate drones in particular with violence and the theater of war. The proliferation of drones in our skies could lead to a new, Warren and Brandeis moment—all of our amorphous fears about new technology watching us suddenly reified and immediate.
It is for this reason that I believe drones could end up being good for privacy law. The backlash against their use could unravel long-standing doctrinal presumptions against privacy in public, supporting a mosaic theory of privacy such as that on appeal from the D.C. Circuit in United States v. Jones. Moreover, it could cut against the argument that people have no privacy interest in contraband or that there has been no privacy violation as long as a person does not see anything s/he should not. These would become itchy-shirt arguments, no longer feeling quite right.
The widespread domestic use of drones is likely inevitable; changes to privacy law are not. Colin Bennett and Kevin Haggerty’s excellent new compilation Security Games, for instance, shows how big events like the Vancouver Olympics can help introduce new surveillance technologies that then become mainstream. But with federal and local authorities, not to mention the private sector, making individual decisions about the use of drones, I do not see a gradual introduction in the Unites States. Indeed, the only estimate I’m aware of places the number of domestic drones at 15,000 by 2018. There is a chance, therefore, that drones may finally drag privacy law, pointing up and screaming, into the twenty-first century.
August 5, 2011 at 2:27 pm
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Responses (8)
Frank - August 5, 2011 at 5:01 pm
Great points here. One slightly wacky solution: let people “opt out” of the surveillance, by registering their desire for privacy in the same way that a trade secret holder might put up a fence around its property (see the Dupont v. Christopher case excerpt below), or website owners put up robots.txt opt-outs to avoid being copied into a search engine archive.
Of course, as Scott Peppet has warned, any individualistic effort to maintain privacy is likely to unravel. And I’d predict the opt-out people would effectively be nominating themselves for more scrutiny by doing so. The real solutions probably involve a) flat bans on certain types of surveillance and b) strict requirements that metadata accompany any gathered data so that the gathered data is only used for particular purposes. Of course, after the Supreme Court’s Sorrell v. IMS decision, we can expect unaccountable data miners to tout a First Amendment “right to spy.” This is what I have called the “constitutionalization of the Kafkaesque,” an effort to constitutionally protect behavior that courts would find abhorrent in the commercial context as long as its merely eviscerating the privacy of natural persons, not corporations.
From DuPont, on an early manned plane surveillance situation:
“We think, therefore, that the Texas rule is clear. One may use his competitor’s secret process if he discovers the process by reverse engineering applied to the finished product; one may use a competitor’s process if he discovers it by his own independent research; but one may not avoid these labors by taking the process from the discoverer without his permission at a time when he is taking reasonable precautions to maintain its secrecy. To obtain knowledge of a process without spending the time and money to discover it independently is improper unless the holder voluntarily discloses it or fails to take [*1016] reasonable precautions to ensure its secrecy.
“In the instant case the Christophers deliberately flew over the DuPont plant to get pictures of a process which DuPont had attempted to keep secret. The Christophers delivered their pictures to a third party who was certainly aware of the means by which they had been acquired and who may be planning to use the information contained therein to manufacture methanol by the DuPont process. The third party has a right to use this process only if he obtains this knowledge through his own research efforts, but thus far all information indicates that the third party has gained this knowledge solely by taking it from DuPont at a time when DuPont was making reasonable efforts to preserve its secrecy. In such a situation DuPont has a valid cause of action to prohibit the Christophers from improperly discovering its trade secret and to prohibit the undisclosed third party from using the improperly obtained information.”
A.J. Sutter - August 5, 2011 at 9:14 pm
Would an opt-out raise Fifth Amendment issues, at least as far as drones operated by or on behalf of the state are concerned? Though the bigger question is, as Frank suggests, would a Roberts Court care? I’m not at all optimistic that it will be privacy law to be the one who’s dragged pointing and screaming as a result of this development — but thanks for pointing it out.
Ryan Calo - August 6, 2011 at 12:59 pm
Thanks, Frank. I tend to agree with you (and Pam Samuelson) that trade secret law has a lot of potential for use generally in privacy.
A.J., I don’t know that the Chief Justice would care but I can see his Court splitting on the kind of dragnet surveillance I’m describing. Thanks for your comment.
James - August 6, 2011 at 2:12 pm
“What data there is suggests that Americans are nervous around robots.”
Hrm, Eagle Eye, Forbin Project, Terminator series, Matrix series, I Robot, Screamers, Westworld, Runaway, Eve of Destruction, and misc other bad 60′s and 70′s B, C and D books and movies about robots/computers trying to slaughter humanity.
Naw, no reason to be nervous about robots with the ability to watch your every move and rain down death from above. For your own good of course.
Almiller - August 6, 2011 at 3:06 pm
Fly a drone over Chuck Schumer’s backyard and publish the results and we’ll have privacy in no time.
CaptainCaveman - August 6, 2011 at 3:33 pm
Agree with #5 Almiller.
Should fly those DIY hack jobs all over various politicians and police houses. See how they like this crap being rammed down their throats.
Joe Blow - August 6, 2011 at 4:28 pm
It seems to me that domestic use of unmanned aerial vehicles in support of criminal investigations might fail the Kyllo & Riley test, as not commonly available technology. I think that Justice O’Connor’s line of reasoning and her test from Riley is gravely flawed – the corollary is that the more widespread an intrusion the more likely it’s constitutional – but it might initially serve to hamstring the use of this technology for other-than-defensive/security purposes. (I.e. securing a chemical plant using UAV’s is different from looking for crimes in a crowd or on city streets w/t UAV’s).
Fatima - August 7, 2011 at 4:40 am
Great blog post Ryan. I’d like to hope more people will mobilize for privacy even if it’s via robot backlash.
@ Joe – It might fail the Kyllo & Riley tests today as not commonly available technology, but that might not be the case a few years down the line. Robots are being used more and more in every situation. Soon enough, I’m sure that security companies (including those for the home) will seize any chance to enter the arena and create aerial surveillance tools for every homeowner, making it a widely used technology. We’ll have to see how technology progresses!
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