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Eyes in the Sky

Drone regulation may come down to better defining reasonable expectations of privacy.

Campus News  |  Nov 18, 2015  |  By Brian Sodoma

A drone flies over the crowd at a Jimmy Buffet concert as audience members angle for the camera. It’s a light-hearted scenario where people seem unthreatened by the presence of a flying device recording their actions. But at the Los Angeles Kings’ Stanley Cup celebration last summer, a drone wasn’t as well received. Cheers turned to boos and eventually an audience member threw a skateboard at it. The crowd cheered when the busted device fell to the ground.

UNLV criminal justice professor Joel Lieberman highlighted these situations in a speech he gave last year at the William S. Boyd School of Law’s Symposium on UAS in Nevada. They are also examples of some of the divergent viewpoints Lieberman is seeing in his survey research on public opinions of drone use.

“People’s support varies greatly depending on the context,” he said.

Professor Lieberman is finding some clarity on those contexts, too. In his recent work, he found people tend to be more accepting of drones, also referred to as Unmanned Aerial Systems (UAS), for government use. Applications like military operations, border patrol, climate and geological work and rescue efforts saw wide public support. But support wanes when drones are put in the private sector’s hands. Crowd monitoring, crime detection, and delivery services saw lower approval levels.

Drones lend themselves to an evolving legal and regulatory quandary about privacy protections. And at the Boyd School of Law’s UAS symposium, conversations often revolved around whether the public’s expectations of privacy in certain situations are realistic or not.

Reasonable Expectations

Are we realistic in asking for privacy protections in our backyard or in a public park? And how is it that we can create regulations that are fair for UAS users and developers while also protecting the public? Legal experts and scholars know the regulatory conversation is a long and uncertain one that is only getting started.

Both the benefit and the potential problem for drones comes from their ability to collect information that, in the past, would have required a human to enter, or trespass, into a space. A panel of scholars, attorneys, and UAS technology experts at the symposium discussed some of these scenarios.

If, for example, someone is sunbathing in his or her backyard, is it reasonable to think others cannot take pictures from the other side of a fence or block wall or, in the case of drone use, from above and from a distance? What if the sunbather is a suspect in a crime and the surveillance is needed for evidence? Is it fair to use a drone in these scenarios?

“There’s a tension between great utility and the potential for misuse here,” explained Richard Jost, a director with local law firm Fennemore Craig.

Jost said there is a case currently working its way through the California court system where a person involved in a car accident on a freeway had a candid conversation with an EMT on the scene. The person’s statements were potentially damaging to their case, but the assumption was that it was a private conversation. However, an unmanned aerial vehicle from a TV station flying nearby picked up the conversation through its audio technology.

While the accident occurred on a public street, where expectations of privacy are largely considered surrendered, the situation lends itself to a bigger conversation, said Jost. Was the person’s expectation of privacy reasonable? Or should the conversation be allowed as evidence in the case?

“We’ll find out what the California supreme court says about her expectation of privacy, and was it reasonable?” Jost added.

The Fourth Amendment

While the Fourth Amendment protects against unlawful searches and seizures, and the Omnibus Crime Control and Safe Streets Act of 1968 requires a warrant for police involved in any form of electronic surveillance, there currently are plenty of threats to these protections, said Erwin Chemerinsky, dean of the University of California, Irvine School of Law and a leading scholar in constitutional law. He calls the current Fourth Amendment protections “grossly inadequate” in the world of UAS.

Chemerinsky cited 2013’s Maryland v. King involving Alonzo King, who was arrested for an assault he admitted to committing. But a cheek swab taken at the scene from King produced a DNA link to an unsolved rape case. He was then sentenced to life in prison.

“It was the first time in American history the Supreme Court allowed a search without probable cause,” Dean Chemerinsky added.

Regarding 1989’s Florida v. Riley, Dean Chemerinsky talked about how police used a low-flying helicopter to peek into someone’s backyard as part of an investigation. The state supreme court ruled 5-4 in favor of it not being a search and no warrant was required.

Dean Chemerinsky called privacy “an imprecise term” requiring further definition. He said the California privacy act, passed about 15 years ago – which makes it impermissible to use technology to gain images or sound otherwise requiring a physical trespass – could become “a model for states across the country.”

Future Regulation

But, overall, scholars, attorneys and legislators seem hesitant to establish too much early drone regulation, acknowledging that legal precedent and case law will likely dictate much of future regulation.

“You tend to not legislate ahead of technology, but, instead, respond to technology,” said John Valery White, professor of law at Boyd and strategic advisor to the UNLV president. “To try to anticipate usage and develop legal rules to regulate that usage is sort of a bad idea. … We can’t guess all the uses.”

Public opinion is also an important factor in regulation. How the public feels about potential privacy invasions should certainly be considered in legislation and rules about drone use, Professor Lieberman said.

“Hopefully policy takes into account the attitudes toward this,” he added. “It certainly shouldn’t be dictated by [the public], but it’s not something you want to ignore.”

Boyd School of Law adjunct professors Stephen Bates (associate professor, UNLV Hank Greenspun School of Journalism and Media Studies) and Richard Jost (director, Fennemore Craig) also teach a course on privacy issues and unmanned aerial systems.