Revelations about U.S. government cybersurveillance and law-enforcement desires to increase the use of UAVs have raised public concerns about intrusions into citizens' privacy. But a growing number of state officials attuned to economic and security benefits from UAVs are working to dispel fears of “Big Brother” government and safeguard civil liberties.
The Aerospace States Association (ASA)—a nonpartisan group of lieutenant governors and appointed delegates from states with commercial or economic interests in aviation and aerospace—has joined with two national state government organizations to create guidelines for states crafting legislation to protect citizens' privacy from UAVs without endangering the nascent industry.
Alaska Lt. Gov. Mead Treadwell (R), ASA's chairman, discussed the proposed UAV Privacy Considerations in mid-August at the Association for Unmanned Vehicle Systems International's (AUVSI) annual symposium here. ASA acknowledged that legislators and their constituents in many states are concerned about UAVs and individual privacy because this new technology, using a variety of sensors, allows undetected loitering for long periods of time. And some worry that federal and local enforcement agencies—as well as private sector entities—might use those capabilities in ways never anticipated in the U.S. Constitution's ban on unlawful searches.
“It's illegal to be a Peeping Tom whether you use a ladder or a tree or a UAS. We don't need new Peeping Tom legislation, but I think you do need legislation to ensure this technology is used appropriately,” Treadwell said.
In April, Virginia passed the first UAV-restrictive laws, according to the National Conference of State Legislatures (NCSL). The commonwealth was followed by Idaho, Florida, Montana, Tennessee and Texas, as well as an Alaskan resolution. North Dakota and Hawaii, by comparison, have passed laws providing funds in support of UAV work.
Treadwell noted that Alaska has a privacy clause in its constitution, but many other states do not. People in Alaska, an aviation-dependent state, “are glad we are looking at these issues,” Treadwell said. “On the other hand, the magnificent applications this technology can provide to the Arctic are significant.”
ASA has joined with the Council of State Governments and NCSL to craft recommendations for states to evaluate in developing UAV legislation. The three groups consulted with a variety of stakeholders including the American Civil Liberties Union, National Association of Criminal Defense Lawyers and International Association of Chiefs of Police.
Among the recommendations: guidelines for when to require a search warrant when conducting surveillance of an individual or his property; a prohibition on commercial UAV and model aircraft flights from tracking individuals without their consent; and a ban on armed UAVs in commercial airspace.
One issue not tackled so far still must be resolved between state and federal governments, and that is landowner property rights. Alissa Dolan and Richard Thompson, 3rd, legislative attorneys at the Congressional Research Service, noted in an April report that legal precedents are suffering here. “In the past, the Latin maxim 'cujus est solum ejus usque ad coelum'—whoever owns the soil owns too the heavens—was sufficient to resolve many of these types of questions, but the proliferation of air flight in the 20th century has made this proposition untenable,” they said. “Instead, modern jurisprudence concerning air travel is significantly more nuanced, and often more confusing.”
Some courts have relied on the federal definition of “navigable airspace” to determine which flights could constitute a trespass, according to the attorneys. Others employ a nuisance theory to ask whether an overhead flight causes a substantial impairment of the use and enjoyment of one's property. In fact, some query—among a host of unresolved questions—whether property owners may protect their property from a “trespassing” UAV; how stalking, harassment and other criminal laws should be applied to acts committed with the use of UAVs; and to what extent federal aviation law could preempt future state law. Finally, of course, courts have struggled to determine when a government-operated overhead flight constitutes an unlawful action under the Fifth and Fourteenth amendments.
Elected officials would like to sort out the ambiguities, and soon. In a recent survey, AUVSI estimated that 103,776 high-paying jobs could be created by the unmanned aircraft industry and state tax revenue could exceed $482 million nationally by 2025. The industry group also believes that the U.S. would lose more than $10 billion in economic activity for every year unmanned aircraft are excluded from the National Airspace System.