Federal legislation calling for the integration of unmanned aerial vehicles (UAVs) into national airspace in the next several years brings with it a “host” of complicated legal issues that will have to be resolved along the way, according to a recent report by the Congressional Research Service (CRS).
The CRS report said the government will need to address the regulatory framework for permitting the use of UAVs in national airspace, as well as the tricky issue of privacy rights and flying the aircraft over private property.
“The full-scale introduction of drones into U.S. skies will inevitably generate a host of legal issues,” the Jan. 30 report said.
The challenges will play out for government and private operators of drones that could have constitutional implications, such as balancing the ability of news organizations to gather information under the First Amendment, while protecting against what might be considered unreasonable searches and seizures under the Fourth Amendment.
“Because the Fourth Amendment’s prohibition against unreasonable searches and seizures applies only to acts by government officials, surveillance by private actors such as the paparazzi, a commercial enterprise, or one’s neighbor is instead regulated, if at all, by state and federal statutes and judicial decisions,” the report said.
“Yet, however strong this interest in privacy may be, there are instances where the public’s First Amendment rights to gather and receive news might outweigh an individual’s interest in being let alone,” the report added.
President Barack Obama signed legislation passed by Congress in February 2012 requiring the Federal Aviation Administration to fully integrate UAVs into domestic airspace by 2015. The FAA Modernization and Reform Act of 2012, among other things, mandates that the FAA ease and expedite the permit process for law enforcement to fly UAVs, and calls on the FAA to set up six test sites to develop and test the systems in civilian airspace. The agency has created a single UAV integration office responsible for implementing the bill.
The FAA legislation potentially offers a lucrative new opportunity for the UAV industry and major defense firms, whose market has been mostly limited to the military. UAVs could have broad application toward enhancing the capabilities of police, firefighters and other public safety officials, for infrastructure and crop monitoring or assessing areas hit by natural disasters.
The plan, however, has its critics. In addition to cameras, UAVs can carry highly sophisticated infrared and imaging technology detectors some say could infringe on privacy.
At least two members of Congress have recently proposed legislation intended to safeguard privacy in the operation of drones.
Rep. Ed Markey (D-Mass.) in December introduced legislation, the Drone Aircraft Privacy and Transparency Act of 2012, aimed at making more transparent the domestic operations of unmanned aircraft. Markey’s legislation said the Modernization and Reform Act contains no “explicit privacy protections or public transparency measures” (Defense Daily, Dec. 20, 2012).
Markey’s bill would amend the act by adding several key provisions, including not allowing the agency to issue licenses to operate UAS unless the applications include information such as who will operate the UAV, where it will be flown, what kind of data will be collected, how the data will be used, how long the information will be retained and whether it will be sold to third parties.
Rep. Ted Poe (R-Texas) has proposed a bill, the Preserving American Privacy Act of 2012, that would prohibit a private operator from using a drone to record the activities of another private individual without that person’s consent. The CRS said that proposal could run into First Amendment challenges.