The contrast between fast-moving technology and slow-moving laws was on full display on Wednesday at a hearing of the Senate Judiciary Committee on domestic use of drones. The issue was not arming them, because the Federal Aviation Administration bans weaponizing civil aircraft. (Several senators asked about drones outfitted with weapons, though, including nonlethal options like tear gas or stun grenades.)
Instead, the concern of the day was privacy, and the message was that the drones â€" or, more properly, unmanned aerial systems â€" raise new issues because they are small and unobtrusive and the technology they carry can be quite basic.
Harriet Pearson, a Washington lawyer who has specialized in privacy issues for 20 years, said it was time for a national conversation about the rules. “We have to say, how do we create the norms and the laws’’ she said. The debate now, she said, could resemble the one in the 1870s and 1880s when cameras became common and the question was asked, when was it appropriate to photograph
In that era, she said, a consensus emerged that what happened in public was fair game. This time it is slightly different â€" the definition of public is expanding, and the drones are so unobtrusive that people being videotaped may have no idea it is happening.
Intrusion by government agencies is governed by the Fourth Amendment protection against unreasonable search and seizure. (The Constitution is intended to protect against government abuses, not private abuses, and in any case does not explicitly contain a right to privacy.) Disputes involving drones operated by companies or private individuals would fall under common law, a body of precedent that goes back to English tort law.
“I’ll call this the possible renaissance of privacy tort law,’’ she said.
But how would the courts rule on such a case Senator Charles Grassley of Iowa, the ranking Republican member of the committee, and others pointed out that the Supreme Court ruled last year that police needed a warrant to attach a GPS tracker to a drug dealer’s car, because the device was a physical intrusion. A drone involves no such physical intrusion.
Nor do small drones even use technology that would be considered particularly novel nowadays.
In a New York Times video, aerial shots from a fixed-wing plane (a modified version of the Chinese-built HobbyKing plastic foam radio-controlled airplane) were shot with a GoPro Hero 3, which sells on Amazon for $300; shots captured from a hexacopter used an older model of the camera. The Times video journalist who produced the video, Erik Olsen, says both models are popular with extreme sports enthusiasts.
The hexacopter and the fixed-wing plane in the video, both belonging to Prof. Benjamin Trapnell of the University of North Dakota, have a maximum flight time of about 15 minutes, and run on electric power. Slightly larger drones with gasoline engines can fly for far longer periods, but many pilots of drones prefer the electric models because exhaust can obscure the camera’s view.
Benjamin Miller, of the Mesa County, Colo., sheriff’s office, brought to the Senate hearing a two-pound helicopter, a small, sleek plastic pod at the center of three arms; each arm carried two rotors. Arson investigators had used it, he said, to take pictures with “a point-and-click camera available at your neighborhood Walmart.â€
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