Home Op-Ed Drones and Your Flyby Privacy Rights
Drones and Your Flyby Privacy Rights
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Drones and Your Flyby Privacy Rights

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It’s a bird, it’s a plane, it’s a drone! Drones, unmanned flying objects that are guided remotely, seem to have been proliferating lately, moving from the center of a political debate on spying and targeted killing in a war/conflict context to a catalyst of public discourse on the tensions between technological progress and personal privacy.

Consider for a moment recent stories of people’s reactions to drones in what they perceive as they space: a man shoots down a neighbor’s drone that he felt was hovering over his backyard where his two young daughters were sitting; a group of fans bring down and destroy a drone that they discovered hovering over their celebration of their team’s victory; a woman wakes up to a series of blinking lights to discover a drone hovering outside her window (which returned over a series of nights); a mother complains to a lifeguard about a drone that is taking pictures of her and her daughter sunbathing at the beach; universities issue bans on drones over campus grounds concerned over violations of the Family Educational Rights and Privacy Act (FERPA); hospitals keeping track of drones around the hospital grounds and patients citing Health Insurance Portability and Accountability Act (HIPAA) compliance concerns, etc., etc., etc.

The skies are full of them, and so are news and media channels. An early 2014 “60 Minutes” television program segment with Morley Shafer examined the current state of drones, what they are being used for and some of the legal ramifications. The segment showed a professional photographer and videographer who use camera-fitted drones to take images and videos of aerial flights that wouldn’t otherwise be possible. Legitimate enough, it seems, considering that the law in the United States says you can take pictures of just about anything that you can view from a public street. Also, above a certain point in the sky, your property ceases to be your property, whether that property is personal or corporate.

 

FlyBy Privacy Rights

But what happens if someone decides to send off that drone with the camera to peer into a window and snap photos or take videos? How far from the window does the drone have to be to not be considered trespassing? Could the operation of the drone be construed as an invasion of privacy? In 2013, a New York photographer took photos of his neighbors by pointing his camera from his second floor window to their luxury apartments across the street. The residents were upset because they felt they had an expectation of privacy and “the images show private moments that include cleaning (while bent over), taking naps, and kids resting with teddy bears.[1]” The photographer, Arne Svenson, claims that they should not have an expectation of privacy because they all had their curtain open or no curtains at all and anyone could see them from the outside. A lawsuit against Svenson was dismissed because the judge said the individuals in the photos were unidentifiable and that the photographs were protected under a First Amendment/Free Speech right.[2] Svenson did end up selling some of the photographs for thousands of dollars and as part of the dismissal agreed to take the photos off his website and Facebook page.

Although Svenson used a camera instead of a drone with a camera, the same situation can occur with the drone manning the camera. In 2014, a Federal Aviation Agency (FAA) fine against Raphael Pirker, a photographer who was operating a small remote-controlled airplane (drone) was dropped. He was fined for unsafe maneuvering and for operating an unmanned craft for commercial purposes. The judge said “there is no enforceable FAA rule applicable to Pirker’s activity” and he didn’t believe that Pirker’s model aircraft should be classified as an “unmanned air system.[3]

The FAA said it would appeal as it is concerned about multitudes of drones flying through airspace unregulated and leading to a possibility of crashes, property damage and privacy violations. Part of FAA’s concern comes from the fact that drones do not always look like miniature flying aircraft. They are becoming smaller and being designed to be inconspicuous in forms such as hummingbirds[4] and dragonflies.[5] November 2014, the FAA own its appeal when the National Transportation Safety Board reversed the decision affirming that “unmanned aircraft systems (UAS) meet the legal definition of ‘aircraft,’ and that the agency [FAA] may take enforcement action against anyone who operates a UAS or model aircraft in a careless or reckless manner so as to endanger the life or property of another[6]” under FAR 91.13. In February of 2015, the FAA issued a set of rules and guidelines for the use of drones. You can find them here.

Why is the FAA so concerned? Numbers is one of the reasons. The FAA estimates up to 7,500 commercial drones may be in use by 2018, and market analysts predict the industry will be worth $5 billion by 2019.[7]

As for states, they seem to be split. However it seems Florida has taken a lead. In 2013 it signed the Freedom from Unwarranted Surveillance Act (FUSA) and then expanded FUSA in 2015 to add additional privacy protections. Since 2013 seven (7) states have enacted laws regulating drones to protect privacy according to the National conference of State Legislatures.

During the 60 Minutes segment mentioned above, Senator Feinstein, A Democrat from California, spoke about her concerns with flying peeping toms. She says that these issues of privacy must be addressed. “What is an appropriate law enforcement use for a drone? When do you have to have a warrant? What’s the appropriate governmental use for a drone,” she asks. Regulation will be needed. “Perhaps regulation of size and type for private use,” says Feinstein. “Secondly, some certification of the person that’s going to operate it. And then some specific regulation on the kinds of uses it can be put to.[8]

Two Sensepost Research Labs security researchers, Glenn Wilkinson and Daniel Cuthbert, highlighted the extent to which drones can be used for illicit surveillance. They developed Snoopy – a drone with an application that can capture information from a Wi-Fi connected smart phone. It certainly gives another meaning to the Peanut’s character Snoopy and the dastardly Red Baron.[9]

According to the researchers, this is how Snoopy works: Anytime you use a Wi-Fi network, your smartphone or tablet “remembers” that network, so it can more easily connect the next time you’re in range. It does this by pinging each network to see if it’s available. Snoopy exploits this feature by identifying a previously used network, then it pretends to be that network, so your smartphone or tablet connects to it, and you are none the wiser. Once your device is connected to the false Wi-Fi, Snoopy can then collect any information you send over the tapped network, from Facebook login credentials to bank account details. It also collects your device’s unique ID number, your GPS coordinates, and your signal strength.”[10] Snoopy was presented at Black Hat Asia Cyber Security Conference in Singapore as a way to expose the potential security threat so smart phone manufacturers could work on a fix.

What about the legality of capturing this information from the smart phone? “Collecting metadata, or the device IDs and network names, is probably not illegal, according to the Electronic Frontier Foundation. Intercepting usernames, passwords and credit card information with the intent of using them would likely violate wiretapping and identity theft laws.”[11] A key data security strategy is to remind employees not to use the public Wi-Fi available in coffee shops, books stores, and other retail outlets. Even Wi-Fi spots in colleges or libraries need to be checked for security before logging on.

Facebook took the Wi-Fi concern one step further. In early 2014, it announced the creation of a “new lab of up to 50 aeronautics experts and space scientists to figure out how to beam Internet access down from solar-powered drones and other connectivity aircraft.”[12] This is part of Mark Zuckerberg’s (CEO of Facebook) Internet.org project to make the Internet affordable and accessible to millions of humans on our planet who currently do not have access to it. According to their website that is two-thirds of the world population![13] Facebook is not alone. Google has project Loon – to provide balloon-powered Internet for all. We may soon have a sky full of unmanned flying objects. This brings the privacy issue to another level as people are already concerned about the massive amounts of data Facebook and Google already has on us based on our posts, uploads, and queries. Now they can add data about what we do, where we go, etc. from the drones automatically without any input from us. Of course the big question is – what will they do with all that data?

 


Citations:

[1] Michael Zhang, “New Yorkers Upset Over Photographer’s Secret Snaps Through Their Windows,” PetaPixel, May 16, 2013.

[2] Judge Dismisses Lawsuit Against NYC Photographer Who Snapped Pictures of Neighbors,” NBC New York, Aug 9, 2013.

[3] Kashmir Hill, “Drone Wars (Of the Legal Variety),” Forbes, Mar 17, 2014.

[4] Anna Rothschild, “The Hummingbird Drone,” NOVA, Oct 31, 2013.

[5] Techjet, (accessed April 6, 2014).

[6] Chappell, Bill, NPR, Nov. 18, 2014.

[7] Vergano, Dan, May 6, 2015.

[8] The Future of Drones: Technology vs. Privacy,” CBS News, Mar 14, 2014.

[9] Baron versus Beagle – The Original ‘Dogfight’,” Youtube, (accessed April 6, 2014).

[10] Andrew Couts, “Is it a bird? Is it a plane? Nope – it’s a drone stealing your identity,” Digital Trends, Mar 20, 2014.

[11] Erica Fink, “This drone can steal what’s on your phone,” CNNMoney, Mar 20, 2014.

[12] Vindu Goel, “A New Facebook Lab Is Intent on Delivering Internet Access by Drone,” The New York Times, Mar 27, 2014.

[13] About,” Internet.org, (accessed April 6, 2014).

Deborah Gonzalez on EmailDeborah Gonzalez on LinkedinDeborah Gonzalez on Twitter
Deborah Gonzalez
Deborah Gonzalez
Deborah Gonzalez, Esq. is an attorney and the founder of Law2sm, LLC, a legal consulting firm focusing on helping its clients navigate the legal and security issues relating to the new digital and social media world. Deborah is the co-developer of the Digital Risk Assessment tool that assists a company to ensure that their online activity is in line with state laws, federal laws, and regulatory compliance.

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