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Q&A: Privacy implications for aerial drones

As drones become cheaper, one legal scholar believes privacy rules need to be updated to keep pace.

Last Modified: 14 Oct 2013 00:00
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Woodrow Hartzog, an assistant law professor at Samford Uni, thinks laws need to keep up with the times [Al Jazeera]

New York, US - The Drones and Aerial Robotics conference - a weekend-long event highlighting innovations and uses in civilian drone technology - was a thing to behold.

A certain cognitive dissonance was necessary to ignore what many think of at the mention of the word "drone" (pilotless crafts used to kill thousands in Pakistan, Afghanistan and Yemen). Instead, participants were urged to focus on how small, unarmed crafts carrying a camera and, perhaps, sensors could be used for educational and recreational purposes.

There were, of course, participants at the New York University conference who brought up the consequences of drone warfare, and others who questioned the legal issues surrounding the widespread use of civilian drones.

Woodrow Hartzog, an assistant law professor at Samford University in Alabama, was among those voices. He specialises in privacy, human-computer interactions and cyberlaw.

Al Jazeera: We're at a conference where the focus seems to be on the whiz-bangery of this technology. What's being lost in all this when it comes to privacy issues?

Woodrow Hartzog: There's a fair amount of hand-wringing over drones and privacy, but I think in many instances it's often dismissed because drones fly in public and they fly in public spaces and the law, as it's traditionally been conceived, does not protect privacy when you're walking out in the middle of the street. But I don't think that's entirely true.

I don't think that when push comes to shove that we're going to concede, as a society, that any time we're in public we're fair game to be surveyed or photographed, particularly over long distances. Say you're being targeted in public....what if I have a drone and it's dedicated to you, and I only monitor you, in public, for over the period of a year. Have I violated any expectation of privacy?... Well, at that point, it's harassment. Right now, the law, as configured, does not really protect against that.

So the drones are going to force us to answer some difficult questions about [what] "public" means and when we should be protected, even when in public.

AJ: Are there limits as to how a private individual uses drone technology to follow a friend or someone in their community they find suspicious?

WH: The traditional rules that we have against harassment...these things still apply. So if I followed you with a drone for an entire year and posted everything you did online, a court would probably say I'm harassing you... But the case law has been sparse on that, so there are questions to be answered, and you see courts hinting at this... Perhaps we need to redefine [the view that] if it's public, then it's fair game, that we've held for a long time.

AJ: Given the fact that the NSA has been monitoring communications...is there any such thing as a reasonable expectation of privacy, which protects Americans from unreasonable searches and seizures under the 4th Amendment of their constitution?

The use of drones by the military has been controversial [EPA]

WH: So, the problem with the reasonable expectation of privacy test is that it is a one-way ratchet and it's kind of a self-eroding test.

So, by virtue of knowing that people are spying on you, you get boot-strapped into a situation, where, well, people are spying on you and you have no reasonable expectation of privacy now...I find that test to be very problematic, and very ingrained in US law...

The way it works now, we're just not getting any of the protections that we once had and it's self-defeating. Once you've been put on notice that you can have no expectation of privacy, then it's not reasonable to expect any privacy in any area in particular.

AJ: From where do you see the remedy coming? Changes to case law? Activists fighting back? A constitutional amendment or states individually strengthening privacy laws?

WH: I think you're going to see it happen from the ground up, from the courts. But maybe even more likely coming from state legislators. We've already seen a few laws which specifically target drones and automated surveillance...it's happening in an organic, bottom-up kind of way.... we get to tinker with what works.

So this new test comes from this loose collective of state judges and we reach some kind of tipping point, and maybe it either gets recognised at some kind of federal court, or, ultimately, the supreme court...

I actually think that we might want to stop using the word "privacy" as anything other than as an umbrella term, because it means so many different things to so many different people that it ceases to be a useful term for policy... Are we talking about obscurity in public? Are we talking about confidentiality? Are we talking about control over information? We need to drill down on what it is we're trying to protect in any given scenario.

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Al Jazeera
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