Looking at the Privacy-Side of Drones and Surveillance with Ryan Calo

By TAP Staff Blogger

Posted on February 26, 2013


Law enforcement agencies across the U.S. are filing FAA applications to use drones for surveillance; however, civil rights groups and privacy advocates are raising concerns about lack of regulation.

A federal law enacted last year (FAA Modernization and Reform Act of 2012) provided for the integration of civil unmanned aerial vehicles (UAVs) into national airspace system. The Federal Aviation Administration has received about 80 requests for drone authorizations since October 2012, according to the Electronic Frontier Foundation. A few include: a police department in Alabama wants to use a drone for “covert surveillance of drug transactions;” in Maryland, a drone would be used for “aerial observation of houses when serving warrants;” and, in Texas, one police department wants to use a drone for “forensic photographs and intelligence gathering.” (NBC New York) Additional civilian uses include: power companies want them to monitor transmission lines; farmers want to fly them over fields to detect which crops need water; ranchers want them to count cows; film companies want to use drones to help make movies; and, journalists are exploring drones' newsgathering potential. (Huffington Post)

Concern over drone surveillance is mounting. Virginia state Legislature passed a two-year moratorium on the use of drones in criminal investigations; Illinois, Arizona and Montana proposals would require the police to obtain a search warrant before collecting evidence with a drone (Chicago Tribune and The New York Times). Seattle mayor Mike McGinn recently ordered the police department to abandon its plan to use drones after residents and privacy advocates protested (The Seattle Times). Earlier this month, members of Congress introduced a bill (H.R. 637: Preserving American Privacy Act of 2013) that would prohibit drones from conducting what it called “targeted surveillance” of individuals and property without a warrant.

TAP scholar M. Ryan Calo specializes in the areas of cyberlaw and robotics. He recently discussed the privacy concerns with drone surveillance on public radio’s KUOW Weekday program (podcast is available). Below are a few excerpts from his talk with host Steve Scher.

What is the legal expectation of privacy in public places with drone use?

A couple of years ago I sort of predicted or worried out loud that the drones were coming and there wasn’t going to be very much in American privacy law that was going to do much to restrict what we can do with them, especially what the government can do. And that’s precisely because, as you say, there’s really not much expectation of privacy in public. When you’re outside walking around you don’t have a reasonable [expectation] of privacy in public under the current doctrine. Now that might be changing a little bit. In the last year, there was a really interesting case involving whether the police could follow you around by attaching a GPS device to your car and the court said look, you’re going to need a warrant or at least probable cause to follow someone around with a GPS device, but the majority in that case held that the constitutional violation was really the attaching, the physically attaching, the GPS device to the car, which was a kind of trespass that triggered the Fourth Amendment scrutiny. Now of course, you could follow someone around with a drone and not have to physically attach anything. That said, a total of 5 justices worried about other kinds of surveillance, as well, so we’ll see where this ends up. The current status is, police can look at you in your backyard with helicopters, so then they can probably do it with a drone, and they can follow you around with a car, so they can probably do it with a drone.

What are the legal issues that are most perplexing when looking at how our notion of privacy is evolving?

One of them is this idea of privacy in public. And so where do you draw the line? You expect that if you go out and walk around in a mall, people will look at you; we don’t want to restrict that very much. A second one has to do with the fact that you have no reasonable expectation of privacy in contraband or things that are illegal; and one way to see that is with the dog-sniffing cases. The idea is the dog can sniff your bag and sniff your person and part of the rationale for that is that a dog only alerts if you have something illegal on your person, like drugs or bombs or something like that. If you take that principle, sort of writ large, and you have the ability to sort of scan people to see if they have a gun, which is what the police are now doing or experimenting with, or scan a house to see what the heat signatures are like and so forth, as long as you only tell the officer and the officer only sees it when something illegal happens, well then that’s a real puzzle.

It’s something that a guy named Larry Lessig wrote about years ago where he hypothesized there was this worm, that could go through all of our computers, you know, a computer program, could go through all our computer material and it would only ever tell the officers if they came across something illegal, whether that would be constitutional. These kinds of questions are really coming to the fore today. And the last one is, what do you do about these big asymmetries that are especially between consumers and industry? What do you do about the fact that companies know so much about you and are going to use that information, sometimes in ways that help you and sometimes in ways that harm you? Meanwhile, privacy law… all it really technically asks of companies is that they describe their practices in very general terms in privacy policies that no one ever reads, right; and so how do you crack that puzzle?

Where is the right to privacy stated in the Constitution?

Well, those words don’t exist as such, but the place that most people locate a right to privacy is going to be in the Fourth Amendment, which provides, of course, that you can’t have an unreasonable search and seizure. It’s all about figuring out what constitutes unreasonable search and seizure. Now one common misconception is the constitution doesn’t really stop any form of surveillance, it just requires in some instances is that you have probable cause or a warrant. … The First Amendment, or the free speech clause, of the constitution, also has some privacy ramifications and the idea is that if you massively surveil the public, that’s going to chill their activities. Maybe they won’t assemble; maybe they change what they do. And there’s an extent to which you could surveil the public that would actually implicate free speech and association, but that’s seldom remarked.

Professor Ryan Calo joined the University of Washington School of Law in 2012. He previously served as a director at the Stanford Law School Center for Internet and Society, leading its Consumer Privacy Project; he remains an Affiliate Scholar there. Professor Calo researches and presents on the intersection of law and technology. His work has appeared in the New York Times, the San Francisco Chronicle, Business Week, the Associated Press, the Wall Street Journal, and other news outlets. Calo serves on several advisory and program committees, including Computers Freedom Privacy 2010, the Future of Privacy Forum, and National Robotics Week. He also co-chairs the American Bar Association Committee on Robotics and Artificial Intelligence.