June 3, 2013 | By Dave Maass

All Drone Legislation Must Meet These Three Requirements

All but seven states have proposed or adopted legislation relating to the domestic use of drones, or unmanned aerial systems, in domestic airspace, according to the National Conference of State Legislatures. Now, at the invitation of the Aerospace States Association, EFF has rung in with the three crucial elements that all drone legislation must contain to balance privacy rights with free-speech concerns.

Some proposals floated so far, such as California’s AB 1327, lay out a decent framework for limiting the use of drones by law enforcement. Few states, however, have adequately handled the use of drones by private individuals. Texas' recently passed (but so far unsigned) HB 912 manages to mess up both sides of the table by allowing cops to use drones without a warrant while also hampering the press' ability to use drones in newsgathering. The ACLU has a comprehensive breakdown of the legislation, along with analysis of the good and the bad and what has passed into law so far.

On Friday, EFF staff attorney Jennifer Lynch submitted a set of recommendations for states seeking to regulate drones. In her letter, Lynch outlines three straightforward principles that, at a minimum, must be included in any UAS legislative scheme.

“UAS are capable of highly advanced and near-constant surveillance through live-feed video cameras, thermal imaging, communications intercept capabilities, and backend software tools such as license plate recognition, GPS tracking, and facial recognition,” Lynch writes in the letter. “They can amass large amounts of data on private citizens, which can then be linked to data collected by the government and private companies in other contexts.”

First, law enforcement must be required to obtain warrants before using drones in investigations to protect the Fourth Amendment rights of citizens from overbroad or undue data collection. Second, commercial drone operators must be held to established privacy standards and must disclose the details of their operations. Third, legislation that regulates private and media use of drones must strike an appropriate balance between privacy and First Amendment protected activities such as newsgathering.

EFF believes that the public has a right to know where drones are being used, what kind of information the surveillance technology records, how long the data will be stored, who has access to the data and whether the information can be used outside of the original, stated purposes.

For the last several years, EFF has engaged in a transparency campaign to force disclosure of information on domestic drone deployment. Through three successful FOIA lawsuits, EFF has obtained and published details drone flights across the country. Friday’s filing follows a list of privacy-enhancing recommendations EFF filed with the Federal Aviation Administration in April. 

Lynch’s three-page letter to the Aerospace States Association is worth reading in full whether you’re a legislator or a member of the public.

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