Unmanned aerial vehicles ("UAVs"), often called "drones," are coming to American skies.
In February, President Obama signed a law that requires the Federal Aviation Administration to pave the way for public agencies and, eventually, private companies, to fly drones within the United States.
The proliferation of domestic drones has been preceded by a proliferation of news stories about the technology -- and of some misconceptions regarding what drones are, and how they might be used. A law professor and a professor of electrical engineering, we've identified ten commonly held myths related to the technology and legal framework involved in drones and their use.
Myth #1: A model airplane is a drone.
A drone is an unmanned aircraft that can fly autonomously--that is, without a human in control. By contrast, model airplanes are largely flown within visual line of sight and in the presence of an operator who watches and maintains control of the airplane during flight. That alone is enough to place model airplanes cleanly outside the boundaries of the definition of a "drone."
Myth #2: Drones are no different than street surveillance cameras.
The ACLU, the Center for Democracy and Technology, the Electronic Privacy Information Center, and other organizations have raised concerns over the privacy issues associated with the use of drones. One of the first questions privacy advocates get about UAVs is how they differ from the street cameras many cities already employ. But drones are very different from fixed cameras because, most fundamentally, they fly. Not only can drones monitor public spaces, they can see any area visible from the air. Drones can also be used to follow a suspect from place to place without having to merge multiple video feeds from different fixed cameras. Finally, attitudes toward drones appear to differ than attitudes toward more familiar cameras, creating an opportunity to reexamine privacy law.
Myth #3: Drones can only stay in the air for a short amount of time.
Another common belief about non-military UAVs is that they have a short flight time and range. Many battery-powered UAVs are indeed limited to flight times of well under an hour. However, there is enormous variety in the shapes, sizes, and capabilities of UAVs. Some U.S. military UAVs can stay aloft for many hours at a time and have a range of thousands of miles. Boeing is currently developing the Solar Eagle, a solar-powered UAV that will be able to stay aloft at very high altitudes for five continuous years.
Myth #4: Only the police can use drones.
Much of the attention regarding domestic drones has been concerned with their likely use by law enforcement agencies. But there are many other potential applications as well, including agriculture, surveying, news reporting, and firefighting. And Congress has charged the FAA with developing a plan to integrate many more private drones in the nation's airways by September of 2015. The impact of drones in the United States will be profound -- and will go well beyond law enforcement applications.
Myth #5: Police need a warrant to observe you with a drone flying below 400 feet.
There is a 1989 Supreme Court case, Florida v. Riley, where police flew a helicopter at 400 feet in order to look at a backyard and greenhouse for evidence of marijuana cultivation. The Court found no constitutional privacy violation. Four of nine justices remarked that a helicopter is allowed to fly at 400 feet, adding "We would have a different case if flying at that altitude had been contrary to law or regulation." One justice agreed with the holding but wrote separately, reasoning in part that "there is considerable public use of airspace at altitudes of 400 feet and above." Presumably based on this language, it has been suggested that a warrant is needed to operate a drone for surveillance purposes below 400 feet. But nothing in either the four-justice plurality or one-justice concurrence in Riley -- or any other Supreme Court case -- supports this bright line view.
Myth #6: Police flying a drone to the scene of a crime can only use footage acquired at the crime scene itself.
Another misconception is that police who are flying a drone to a specific location such as a crime scene or emergency cannot use the footage the drones gather on the way to that location. Generally speaking, if an officer has a right to be somewhere -- whether a sidewalk, stairwell, or helicopter -- she can gather whatever evidence she can see, smell, hear, or record. The same is likely true of drones. Of course, it may be a matter of best practice only to record the activities of citizens when necessary. But it is not a constitutional limitation; "incidental" drone surveillance may well be in the cards.
Myth #7: The Supreme Court's January 2012 decision in Jones (the warrantless GPS tracking case) means that police need a warrant to follow your car using a drone.
In the recent case of United States v. Jones, the Supreme Court held that officers generally need a warrant to follow a vehicle with a GPS device continuously for an extended period of time. A majority of justices (five of nine) expressed a general concern with sustained surveillance by electronic means. Technically, however, the Jones case was decided on a narrower basis: five justices thought that the act of affixing the GPS device to the car was itself a kind of trespass to personal property, thus triggering a Fourth Amendment violation. Drones do not need to be affixed to anything, so the Jones ruling won't necessarily limit how they might be used for surveillance.
Myth #8: Most "drones" used by the U.S. military overseas are armed.
Many of the impressions regarding drones come from media coverage of military UAVs. In particular, UAVs are often described in the press as firing missiles at insurgents or terrorists. It turns out, however, that the overwhelming majority of U.S. military unmanned aircraft are unarmed, and are used to acquire imagery. In many cases, this imagery provides vital information that can help save the lives of American troops on the ground.
Myth #9: It doesn't take any flying skill to operate a U.S. military "drone."
Sometimes you hear the disparaging claim that UAVs, unlike fighter jets, are easy to fly. U.S. military unmanned aircraft such as the Predator are capable of autonomous flight but are piloted by extremely skilled aviators. Thanks to a combination of technology advances, these pilots no longer need to be physically sitting in the airplane. But that doesn't make them any less skilled in most respects than traditional in-the-cockpit pilots. Indeed, many U.S. military unmanned aircraft pilots prefer not to use the term "drone," as it fails to recognize the high levels of skill and extensive training behind real-world flight operations. Instead, they often use terms such as UAV or RPA ("remotely piloted aircraft").
Myth #10: The downsides of drones in U.S. airspace outweigh the benefits.
Like almost any technology, drones can be misused. It's important to put in place appropriate frameworks to ensure that they are operated responsibly. In doing so, however, we shouldn't lose sight of the bigger picture: The domestic use of drones will provide a long list of benefits. They can provide vital, lifesaving imagery in many different scenarios. The drone community, which includes companies, universities, and hobbyists, is merging robotics, sensors, and airframe design in an amazing variety of innovative ways. These innovations, and jobs they create, both now and in the future, can help American competitiveness not only within the drone industry, but also more broadly.
Ryan Calo is currently Director of Privacy and Robotics at the Center for Internet and Society at Stanford Law School. As of September, he will be a professor at the University of Washington School of Law. John Villasenor is a professor of electrical engineering at UCLA and a nonresident senior fellow at the Brookings Institution in Washington, DC.
Follow John Villasenor on Twitter: www.twitter.com/johndvillasenor
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