Eyes in the Sky
California Lawyer

Eyes in the Sky

Will drones end privacy as we know it?

August 2013


Drone illustration by Paul Fleet; background photo by franckreporter.

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Like many people who post their vacation videos on YouTube, Raphael Pirker offers plenty of clips of familiar, touristy landmarks. But instead of the usual parade of postcard poses and frozen grins, Pirker - a.k.a. nastycop420 - draws huge online crowds with gravity-defying flybys and fly-throughs. In one of his videos, he shoots high above the Golden Gate Bridge, then suddenly pivots into a stomach-wrenching dive that takes the viewer underneath the span and out again, just above the white-capped waters. In the video, Pirker also shares a barrel-rolling, bird's-eye view of the Hoover Dam, a desert terrain-skimming cruise through red-hued Monument Valley, and a roller coaster loop around the Statue of Liberty's torch, above gawking tourists on the ground.

These aerial acrobatics show off what Pirker can do with the small, camera-equipped drones that he designs, builds, and sells. They show as well how far Pirker is willing to go to defy the Federal Aviation Administration, which restricts the recreational use of drones to unpopulated areas and very low altitudes, and bans their commercial use altogether.

"The U.S. drone rules are essentially unenforceable," says Pirker, who, as part of an informal group of drone enthusiasts known as Team BlackSheep, sells unmanned aircraft from his home base in Hong Kong. (Depending on the range of the custom video-streaming transmitter, prices can run as high as $3,500.)

"This is what we do for fun," he adds. "But we also do it to demonstrate the many uses of this technology - and to expose the holes in most [countries'] regulations."

It's hardly a matter of dispute that the FAA needs to craft new rules on drones. What's less clear, though, is whether the agency will be able to meet a congressionally mandated 2015 deadline. It's a complex task, to be sure. As the FAA estimates, as many as 30,000 of these unmanned flying machines could be licensed in the United States for nonmilitary purposes in less than 20 years. That would include everything from the two-pound wonders that Pirker flies to the airliner-size, pilot-free transoceanic cargo planes that companies such as Federal Express are eager to deploy.

Air safety and traffic are the FAA's primary focus, but concerns about drone use don't stop there. Civil rights advocates worry that law enforcement's use of tiny drones - easily equipped with night-vision capabilities and directional microphones - could stretch the "in plain sight" doctrine to an absurd degree, and in the process end privacy as we know it. On the other hand, journalists argue that restricting the public's use of this rapidly evolving technology could threaten the press's First Amendment right to gather and disseminate news. And as the courts begin to weigh in on these issues, it's anyone's guess how well current stalking, peeping, and wiretapping laws can check the proliferation of drones over the United States.

Do Pirker's pint-size devices portend pervasive police searches, unstoppable robo-paparazzi, and flying spybots - which already can be purchased online for a few hundred dollars? "No matter what happens next," predicts Matt Waite of the University of Nebraska's Drone Journalism Lab (which studies both the practical uses of drones in journalism and the legal and ethical issues they pose) "everybody is going to sue everybody."

California is one of the world's major centers for drone research, and therefore a natural place for these debates to play out. Among its leading defense contractors is San Diego's General Atomics Aeronautical Systems, maker of the missile-equipped Predator, often used to take out suspected militants in Afghanistan, Pakistan, Yemen, and elsewhere. In Ventura County, AeroVironment specializes in smaller observer drones. Lockheed-Martin, Boeing, and Raytheon, which maintain operations in California, each have a piece of the military drone market as well. Meanwhile, smaller companies such as 3D Robotics, a San Diego start-up, are building inexpensive drones for the hobbyist market. In Washington, D.C., 7 of the 50 representatives who belong to the House Unmanned Systems Caucus, cochaired by U.S. Rep. Howard "Buck" McKeon (R-Santa Clarita), are Californians. And it's widely anticipated that the Golden State will soon host one of six national drone test sites to help the federal government determine how to integrate drones into our domestic airspace.

California figures prominently too in the legal history of aerial snooping. In 1986 the U.S. Supreme Court held in California v. Ciraolo (476 U.S. 207) that police could legally spy on private property from an aircraft without warrants. The high court, however, has hinted that it may look differently on searches conducted by stealthier, highly maneuverable drones that can be deployed far more cheaply - and therefore pervasively - than piloted aircraft.

"The technology is rapidly evolving and very easily abused," says Linda Lye, staff attorney for the American Civil Liberties Union of Northern California, which sharply objected to a recent draft policy prepared by the Alameda County Sheriff's Department on drone usage. "It's vital that the law keep up," Lye adds.

But what, exactly, does keeping up mean, if the goal is to curtail the possible abuses of drone technology while also trying to aggressively exploit its potential in such areas as farming, firefighting, and search-and-rescue operations? At this point, no one really knows.

We basically take cell phones and give them wings and propellers, and use them as data-acquisition devices," says Chris Anderson, formerly the editor of Wired magazine. Now, as the CEO of 3D Robotics, he sells about a thousand drones or drone guidance systems a month, starting at about $600 apiece.

Another high-flying entrepreneur who is bullish on drones is Patrick Egan of Sacramento. Prior to February 2007, he claims, he was making up to a thousand dollars a day using drones to photograph high-rise condos and other properties for real estate agents and corporate clients. But after he drew attention to himself by publicly questioning the FAA's rules, the agency ordered him to shut down his business until the FAA could issue new rules. That was six years ago.

"It all seems very arbitrary and capricious," says Egan, who can't help but notice that others with lower-profile operations continue to do commercial real estate photography with drones.

For regulatory purposes, the FAA splits the domestic drone market into three distinct categories: civil, public, and recreational. The civil side consists primarily of commercial drones flown for profit, which have never been flown legally in the United States, and five experimental certificates granted by the FAA for research and training. Doing business with drones will remain officially banned until at least 2015, when the FAA is supposed to issue new standards for pilots, registration, licensing, and onboard sensory and collision-avoidance technology.

Once these standards are in place for civil drones, public-agency drones will undoubtedly have to follow similar safety and certification standards. But for now, public-drone flights can be authorized on a case-by-case basis under limited range, altitude, and operating restrictions through special FAA certificates of authorization (COA).

More than 1,400 of these COAs have been issued since 2007, and 327 remain active. Most of the 10 that are active in California are held by universities or military bases. Law enforcement agencies have also expressed an interest in applying for COAs. And, in fact, just two months ago FBI Director Robert Mueller told a Senate committee that his agency has used drones in domestic surveillance.

To date, only one arrest has occurred on American soil in which it was publicly acknowledged that drone surveillance played a key role. That was in North Dakota in 2011, when Nelson County authorities investigating suspected cattle thieves they believed were armed and dangerous received assistance from a Predator drone. Sheriff Kelly Janke said the Predator overflight - which would not have required a warrant if performed by a piloted craft - helped deputies stage a safe, nonviolent arrest.

As for those who fly drones purely for fun, they are subject to FAA hobbyist rules that were originally developed as voluntary guidelines for model airplane enthusiasts back in 1981. The regulations cover all model aircraft that are not flown for profit. According to FAA Advisory Circular 91-57, recreational drones are supposed to operate within 400 feet of the ground, remain within sight of their operators at all times, and steer clear of airports, other air traffic, and populated areas. But, as Pirker's videos clearly show, these restrictions aren't always adhered to.

Pirker maintains that the FAA's rules are merely "advisory," and that they lack the force of law so long as operators fly in what he describes as a "safe manner." But, of course, the FAA doesn't see it that way, and in June the agency issued a $10,000 fine against Pirker for various regulation infringements, including operating a drone, or unmanned aircraft system (UAS), "in a careless or reckless manner, so as to endanger the life or property of another." Pirker says he cannot afford, nor will he pay, the fine, and he continues to deny wrongdoing.

Others, too, are receiving unwanted attention from the feds. Among them, News Corp's now-shuttered tablet-format news website, The Daily, which drew a cease and desist order last year when it used a drone to gather aerial footage for a report on tornado devastation in the Midwest. And though independent filmmaker Patrick Gilles used a drone to shoot some scenes for his 2011 movie, Olive, in his next film he's decided to stay on the right side of the law, even though it means he now has to shoot the film's aerial scenes from a helicopter, which is not only more expensive but more dangerous as well.

In addition to what the feds are doing to deter drone use, state and municipal officials seem determined to draft their own domestic-surveillance drone laws - even though federal regulations could preempt many of those measures. The ACLU reports that no fewer than 42 states have considered regulations or restrictions on drones, with preservation of privacy being the prime concern. Florida, Idaho, Montana, and Tennessee already require search warrants in most cases before police can use drones, and Virginia police have been barred from using drones with or without warrants for the next two years.

Texas, on the other hand, is going in a very different direction. In June its governor, Rick Perry, signed into law a bill that goes into effect next month, which allows law enforcement officials to use drones for surveillance if they have "reasonable suspicion" of criminal activity. The law also makes it a misdemeanor for most private drone owners to fly their craft over private property without permission. This legislation, by the way, was drafted after a hobbyist's drone inadvertently showed a meatpacking plant illegally polluting a river.

In California, the state Senate recently passed a bill (SB 15) that would expand existing criminal and civil penalties for invasion of privacy, eavesdropping, and peeping when drones are involved. The bill also would require search warrants when police use drones for surveillance of people or property that would otherwise require warrants.

At a recent committee hearing, state Sen. Alex Padilla (D-Pacoima) explained that the goal of his bill is to add drones to existing privacy and search warrant statutes. "We need look no further than the Boston Marathon [bombings in April] to just imagine what someone with nefarious intent could do with technology like this," he said. "So in the absence of any regulatory structure, we do need something in place."

Padilla's bill would also ban drones in California from carrying weapons.

The drones Americans know best, of course, are the San Diego-built Predators. These massive, hawk-billed birds, costing $4 million apiece, are designed to conduct long-range remote surveillance and rain Hellfire missiles down on far-flung targets. As sophisticated as these killing machines are, though, when it comes to developing this technology for civilian applications the United States lags well behind much of the rest of the world.

As far back as the late 1980s, Japanese farmers were using unmanned helicopters for crop dusting. The Australians too are moving forward. A decade ago the government began licensing drone operators for aerial photography, surveying, and media coverage of sporting events. And now there are proposals on the table to further expand the use of drones.

But in this country, it's only since the wars in Iraq and Afghanistan started to wind down that domestic applications have been more broadly considered. One company that is looking for new markets is AeroVironment. After seeing its annual revenues for military drones shrink by almost a third last year, the company began assessing both emergency responders and law enforcement as potential sources of business. "The possible uses of this technology are extremely broad," says Steven Gitlin, who is the company's vice president of marketing strategy and communications. But law enforcement, he adds, is "a logical first step."

Not everyone would agree. Mark Corcoran, a drone researcher at Sydney's University of Technology in Australia, believes the FAA made a major tactical blunder when it singled out law enforcement as the first domestic drone application in the United States to be phased in. "Had the FAA first permitted the demonstration of more positive civilian applications of drone technology," Corcoran ventures, "I doubt that there would have been such an intense privacy debate."

Indeed, the feelings that Americans have about drones these days are so negative that whenever the head of the drone industry's largest trade group, Michael Toscano, talks about the technology, he tends to avoid using the "d" word.

"The unmanned-systems opportunity is enormous - to reduce costs, lower risks," said Toscano, president and CEO of the Association for Unmanned Vehicle Systems International, at a drone conference in Thousand Oaks, California. "We have to avoid creating legal hurdles that can destroy this opportunity."

For the purposes of regulation, Toscano says, "Both [manned and unmanned aircraft] involve a plane and a camera. There's no real difference."

"They're not the same," counters Lye of the ACLU. And one of the most important differences, she says, is cost. "Drone surveillance is becoming so inexpensive that it could lift a practical barrier to what has been a [legal] barrier to abuses."

Lye suspects, moreover, that the U.S. Supreme Court may be coming around to her point of view. In last year's case of People v. Jones (132 S. Ct. 945 (2012)), she notes the high court ruled unanimously that attaching a GPS device to a suspected drug trafficker's car constituted a search under the Fourth Amendment. Obviously, planting a tracking device underneath a car is not at all the same as recording a suspect's movements with a drone. But in a concurring opinion joined by three other justices, Justice Samuel A. Alito reflected on the impact of technology that is both inexpensive and potentially invasive. "In the pre-computer age," Alito wrote, "the greatest protections of privacy were neither constitutional nor statutory, but practical. ... Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap."

However, at Pepperdine University associate law professor Gregory S. McNeal characterizes privacy concerns about drones as "somewhat overwrought." He also thinks the ACLU's proposal for warrant requirements are problematic and will lead to troubling inconsistencies. For example, he notes that a crime automatically recorded by a police car's dashboard camera is admissible in court. But were a drone to capture the same footage without a warrant, it would be inadmissible under the ACLU's proposal.

The best way to deal with these issues, says McNeal, is through public transparency and reporting requirements. "Then, if you found out that some officer likes to fly his drone near a sorority house with the camera always pointed in its direction, at the end of the month, when the logs are made, the public will see what he's doing and he'll have to stop."

Transparency is a goal that drone enthusiast Pirker can warm up to, as well. After all, when it comes to flying drones, no one is more "out there" than he is.

"Our [two-pound models] are nothing like the big military drones," he says. "They can't hurt anything. With some commonsense rules and some training, the safety issues can be resolved - and then the sky's the limit."

Edward Humes, based in Southern California, is a Pulitzer Prize-winning journalist and author of twelve nonfiction books.


DRONES DEFINED: What's a drone?

A deceptively simple question begets an increasingly complex answer. Once known solely as a weapon of war, the term drone now also covers the ten-pound, auto-piloted aircraft your nerdy neighbor just built in his garage. It might look like the model airplanes of your youth, but chances are the technology is different.

The fact that one term applies to both recreational and killer aircraft illustrates just how much the definition of a drone has evolved. In short, a drone (either an unmanned aerial vehicle (UAV), or unmanned aerial system (UAS), as it is less-threateningly referred to by government agencies and politicians alike), is any aircraft capable of autonomous flight. A GPS system is commonly in place to guide the aircraft, and often drones are equipped with cameras, infrared devices, microphones, or other sensors, sometimes even with lasers. Drones also can wirelessly transmit information back to their operator, or home base. They can be as compact as a small bird (Nano Hummingbird) or as large as a fighter jet (X-47B). -Logan Orlando

Reader Comments

Concerned Victim - February 7, 2014
It's already happening in California, Drones are being used to perform illegal searches on individuals inside their homes. To be more precise they are being used around Travis Air Force Base in Napa, American Canyon, Vallejo, Concord, Antioch, Oakley, and Brentwood. Not sure yet who controls them, however they are definitely being used by Napa and Contra Costa County officials. The scans can not only be heard but can be felt like a sound of a stereo with a strong base system going thru ones body. Several individuals have been scanned in their own homes or while visiting friends homes in Vallejo, Napa, American Canyon, Oakley, and Antioch. After feeling the scan they have gone outside to see what might be causing it and everytime their has been an unmanned ariel vehicle in the sky or lights low in the sky at night which fly away to avoid detection, or maintain a pattern in the sky such as the constillation "Orion's Belt" to avoid detection. Whomever is controlling them knows very well that they are deliberately defying these individuals rights to privacy and avoid being "caught" by a cameras view. Some have tried to attain an attorney but have been advised that such a case would demand an extensive investigation which in turn would cost more than most could afford to retain such a service to be able to follow through to a court of law. That being said. it is way too easy for "officials" to abuse this power and way to hard for most of us to "prove" in a court of law! So we just loose our right to expect privacy in our homes? We all become victims to un-authorized and illegal searches? We all fall victim to being viewed within the walls of our homes? In our bedrooms? In our bathrooms? Believe me they already have this technological ability and they are already abusing it! If you don't believe it, just look in the skies around Napa junction any night or day of the week, especially in the neighborhoods surrounding the all night super Walmart at Napa Junction, perhaps, should you look the type you might even be scanned while shopping? Its happened to some of us already and it appears that most of the community protect the drones and their controllers, because if you start flashing a camera in public they will alarm them with their horns or car alarms and the drones will disappear suddenly behind the apartments, clouds, trees, or if its night time a helicopter might suddenly appear in the sky so you are detoured from using a flash. The scan of the drones at times is so strong that individuals while being scanned feel light headed, dizziness, nauseous and "equilibrium feels off balance. Once they are out of the drones scan they feel normal almost immediately, depending on the frequency and number of scans they've encountered in a day. Some have left with the off balance feeling (similiar to a drunken state) for several hours after being scanned. So What Now? How can this type of abuse be stopped? Sherrifs' dept. claims they have no drones, so how does one go about pursuing justice when they cant find whom is responsible for the actions of these drones, other than their is always someone near them signaling the drone where to scan, how do we find or begin to find the party(s) responsible, in order to seek justice?

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