Domestic Drones and Privacy: A Primer (CRS Report for Congress)
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| Release Date |
March 30, 2015 |
| Report Number |
R43965 |
| Report Type |
Report |
| Authors |
Richard M. Thompson II, Legislative Attorney |
| Source Agency |
Congressional Research Service |
Summary:
It has been three years since Congress enacted the FAA Modernization and Reform Act of 2012 (FMRA), calling for the integration of unmanned aircraft systems (UAS), or "drones," into the national airspace by September 2015. During that time, the substantive legal privacy framework relating to UAS on the federal level has remained relatively static: Congress has enacted no law explicitly regulating the potential privacy impacts of drone flights, the courts have had no occasion to rule on the constitutionality of drone surveillance, and the Federal Aviation Administration (FAA) did not include privacy provisions in its proposed rule on small UAS. This issue, however, has not left the national radar. Congress has held hearings and introduced legislation concerning the potential privacy implications of domestic drone use; President Obama recently issued a directive to all federal agencies to assess the privacy impact of their drone operations; and almost half the states have enacted some form of drone legislation.
There are two overarching privacy issues implicated by domestic drone use. The first is defining what "privacy" means in the context of aerial surveillance. Privacy is an ambiguous term that can mean different things in different contexts. This becomes readily apparent when attempting to apply traditional privacy concepts such as personal control and secrecy to drone surveillance. Other, more nuanced privacy theories such as personal autonomy and anonymity must be explored to get a fuller understanding of the privacy risks posed by drone surveillance. Moreover, with ever-increasing advances in data storage and manipulation, the subsequent aggregation, use, and retention of drone-obtained data may warrant an additional privacy impact analysis.
The second predominant issue is which entity should be responsible for regulating drones and privacy. As the final arbiter of the Constitution, the courts are naturally looked upon to provide at least the floor of privacy protection from UAS surveillance, but as will be discussed in this report, under current law, this protection may be minimal. In addition to the courts, the executive branch likely has a role to play in regulating privacy and drones. While the FAA has taken on a relatively passive role in such regulation, the President's new privacy directive for government drone use and multi-stakeholder process for private use could create an initial framework for privacy regulations. With its power over interstate commerce, Congress has the broadest authority to set national standards for UAS privacy regulation. Several measures were introduced in the 113th Congress that would have restricted both public- and private-actor domestic UAS operations, and reintroduction of these bills is likely in the 114th Congress. Lastly, some have argued that under our system of federalism, the states should be left to experiment with various privacy schemes. It is reported that by the end of 2014, 20 states have enacted some form of drone regulation.
This report will provide a primer on privacy issues related to various UAS operations, both public and private, including an overview of current UAS uses, the privacy interests implicated by these operations, and various potential approaches to UAS privacy regulation.
