TO: Congressman Ed Markey, Congressional Bipartisan Privacy Caucus FROM:
RE: Oversight methods for domestic UAV use
Date: May 24, 2012
Until recently, almost all domestic use of unmanned aerial vehicles (UAVs) was prohibited by the Federal Aviation Administration (FAA). At the behest of Congress however, the FAA has begun to take incremental steps to allow the widespread use of UAVs throughout the United States. In the first rulemaking since it was asked to ease regulations, the FAA has allowed public safety departments to use UAVs up to 25 pounds without going through a special permitting process. Within days of the announcement, the FAA received over 60 applications for permission to operate the vehicles in domestic airspace.1 While the FAA is starting small, the variety of today’s UAVs runs the gamut: from nearly undetectable bird-size miniatures to airliner-size behemoths, and from ones that can stay aloft for only minutes to blimps and solar-powered machines that will remain in the air for months or years.2
Demand for the services that UAVs provide will only increase, and the expense of operating them will only decrease. The desire for UAVs is not limited to police and fire
Levin, Alan. “Drones up to 25 pounds allowed for US Safety agencies.” Bloomberg News, May 14, 2012. http://www.bloomberg.com/news/2012-05-14/drones-up-to-25pounds-allowed-for-u-s-safety-agencies.html 2
Villasenor, John. “The Drone Threat to National Security.” Scientific American, November 11, 2011.
departments, but extends to universities, commercial entities, and even individuals. The ability of UAVs to provide real-time information from the air is an extremely useful asset that should, in many cases, be encouraged. However, as the use of UAVs begins to climb, so will concerns over privacy. The capability to provide detailed, extensive, and even intrusive surveillance on private citizens requires a thoughtful approach to protecting the privacy that many Americans come to expect.
While the FAA is responsible for maintaining the physical safety of the nation’s airspace, no agency is currently tasked with any kind of oversight particularly pertaining to privacy from aerial surveillance. This lack of protection is cause for concern as more and more entities begin to acquire UAVs. This memo presents three recommendations for oversight mechanisms to approach this problem. It considers tasking the FAA with the additional responsibility, allowing the courts to set limits, and finally encouraging state legislatures to handle regulation.
Assign UAV Oversight Responsibility to the FAA
Historically, the primary task of the FAA has been to ensure the safety of airspace, air passengers, and the greater public. As such, its rules and regulations usually govern topics like the reliability of aircraft or the management of air traffic. However, the agency’s mandate includes “protecting individuals…on the ground.”3 The ACLU argues that the courts have broadly interpreted this mandate.4 Tasking the FAA with the role of protecting Americans from inappropriate surveillance would be a significant departure 3
Stanley, Jay and Catherine Crump. “Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft.” ACLU, December 2011. 4
49 U.S.C. § 40103(b)(2)(B) (2006); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 626-27 (1973)
from its previous activities, but it may fall under this mandated responsibility. There are also a number of reasons it may be well suited for the role. The FAA has the greatest amount of experience in the realm of airspace regulation. Drawing on this experience, the FAA would be the most capable organization at immediately recognizing the challenges of UAV regulation. Technologically speaking, the FAA is the most well equipped federal agency for monitoring domestic airspace, although there are concerns about how effective this monitoring...
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