Drone Viewpoint: Let U.S. Protect Airspace, While States Protect Privacy

January 19, 2016 by

In October, a Kentucky judge dismissed criminal charges against a man who had shot down a drone flying over his property. Now the drone’s owner has brought a federal civil suit against the shooter, William Merideth, arguing that the Federal Aviation Administration is in charge of all airspace and that it allows drones to fly over private property.

All this amounts to a legal mess. The law, both state and federal, is still pretty unclear about where you can fly a drone, and what you as a citizen may do if a drone — probably with a camera on board — is hovering above your home.

What’s needed is a comprehensive legal regime that integrates state and federal jurisdictions. I want to propose the outlines of such a legal model, distinguishing what should belong to the feds and what should be within the realm of the states.

The drone owner in Kentucky, David Boggs, is to some degree right — the air should belong to the federal government. Air travel is at bottom an interstate interest, like river travel in the 18th century, railroads in the 19th or highways in the 20th. State borders are arbitrary with respect to the air. What’s more, the economy is enhanced by interstate travel — and by unmanned interstate shipping, presaged by drone flights.

Federal control should therefore extend wherever an aircraft flies. But the FAA would be crazy to allow drones to fly low over people’s houses.

When it comes to ordinary airplanes, low flight is dangerous. When it comes to drones, the problem is that low flight patterns interfere with ordinary life. It’s not just sound pollution. It’s the sense that someone is watching.

To be fair, that sense is hard to pin down. Sophisticated imaging techniques mean that satellites can read the newspaper I’m perusing on the park bench. But mostly I know that no one who can afford a satellite cares what I’m reading — I’m just not that important.

Drones are different. They’re relatively cheap — and my neighbors may want to know about my life even if multinational corporations and states couldn’t care less.

That’s why states should step in now to protect privacy. Most have Peeping Tom laws already. Those should be extended to include a ban on viewing private life and private spaces from drones.

The regulation of privacy from flying vehicles will inevitably be tricky. Satellites already can see whatever you’re doing outside your house. And it isn’t just military-grade surveillance you have to worry about. Commercial satellite services have the capacity to take pictures of your house, and of you, as they pass by. If you doubt it, just type your address into Google Earth.

But let’s be frank: No one is going to bother to deploy a geosynchronous-orbit satellite just to observe you, unless you’re Osama bin Laden or maybe a Kardashian. That means the threat to privacy from satellite observation is pretty minimal.

In contrast, drones are cheap — and they can hover. They pose a far greater threat to privacy than other forms of observation. If you move, they move. They can find an open shade or curtain, and they can maneuver to a new angle for a better view. Eventually, they may have X-ray vision or infrared capacity.

These features give reason for states to outlaw the use of drones to observe and record people on private property without their consent. Federal control over airways shouldn’t be interpreted to displace state law regulating drones. The federal interest is in flying from place to place, not hovering to get a better view.

Protecting privacy at the state level will allow drones to fly freely without sacrificing the individual’s legitimate interest in being left alone.

Over time, drones may come to play useful roles in traffic control, public safety and even package delivery. Other applications will surely emerge as well.

We don’t want state bans on drone flight to block these technologies from developing. If drones have to fly over roads alone, much of their efficiency could be lost. It can be valuable for something to be able to travel as the crow flies.

Our real worry about drones isn’t congestion or noise. It’s the potential loss of privacy. State regulation can help solve this problem.

The slogan for drone regulation should be: Feds to let them fly, states to protect what they see. The balance should let us a benefit from a new technology without sacrificing ourselves to it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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