How the Current Privacy Debate will Impact the Drone Industry

In Drone Law Blog, Drone Law Top Level Categories, General Counsel Services, UAV Privacy Issues by Enrico Schaefer

Drone Flight vs. Privacy Rights

Drones and privacy continue to be a hot topic. While flying over someone’s property will continue to be hotly debated. But GDPR in Europe will also affect the trend towards privacy protection. Congress continues to consider different privacy laws which provide more rights to consumers. And your privacy policy on your website needs to inform consumers what personally identifiable information you are capturing and how it will be used.

In this episode, we will discuss general privacy principles, the trend towards extending privacy rights, how to handle privacy issues captured during drone flights, and the general status of privacy law in the United States.  You might want to check out this Notice of UAV / Drone Operations documents.  Also, check out this article by Douglas Spotted Eagle PROPERTY OWNER “AIR RIGHTS:” FACT or FICTION?

This is Drone Attorney Enrico Schaefer, for Drone Law Pro. Today, we are going to be talking about the different privacy issues which all of the sudden are hitting the front page across a number of different text sectors.

They are really driving a social economic discussion about the role of social media and the Web in our daily lives. For the most part, we just simply upload our data into these applications, social media platforms, on the Web without much question or concern about privacy issues. Until we find out that the data is going to some unrelated third party and there is a sudden back lash. In Europe, there many more privacy rules which affect data. In the U.S., there is now movement to either mimic or create new privacy laws and protection for U.S. citizens which to date have not really existed.

How does privacy work in the Tech space? On the Web and other different platforms, social media apps, etc., the user is presented with a Privacy Agreement which tells them what is happening with their Personal Identifiable Information (PII). That limits what the website application, etc., can use that data for. Now there is also None Personally Identifiable Information (NPII), which means data that might be used in gross across all users, but that cannot be specifically be linked back to a single user.

What is all of this mean for Drone Pilots and Drone Technology companies both on the software and hardware side? The issue of privacy has been around, since the 1990’s and the invention of the internet. It has always been something that people have talked a big game about, but at the end of the day the consumer just wants to know where to put their credit card into the computer. Right? We talk a big privacy game in the U.S., but there is no general right to privacy such as in Europe. Our right to privacy in the Constitution only applies to government action and we can simply agree with any software or hardware provider, website operator, or by way of terms of view in privacy agreements. What can be done and what cannot be done with our data?

Does anyone read those terms or service or Privacy Agreements? Typically, not. Only a very small percentage of people pay attention to that stuff. We just want to use the functionality of the application. In the Drone space, privacy has been around since day one, because everyone knows that this Drone has a camera. There is a general misguided sense that somehow Drones can be used to spy on people and we all know that they are so noisy they would be a terrible instrument for surveying or spying on someone and that photos by and large are so far away that you wouldn’t be able to tell who a person is in a crowd. You do not have much of a right to privacy the moment you go outside, into public, and therefore your picture being taken may not be problematic. That is just part of what happens when you go outside.

Could someone use your likeness for commercial purposes? No, they would need to get your permission. Incidentally, in terms of just posting on the either internet or a picture that includes your picture, you are probably going to have very few if any rights with regards to that particular issue. Drone Operators do not have direct relationships with the people who might get caught up in photos and videos. Even when those people are in public, you have states like Florida and other states that are trying to enact privacy related laws that preclude Drone Operators from capturing people or buildings that do not belong to them. Whether or not those are preempted by Federal Law remains to be litigated.

What we as a Drone Community should realize, and do though, is embrace the privacy debate. Step up to the plate and to bake privacy principles and industry standards into our business models, so that we do not end up having a really heavy hammer come down on the Drone industry when it comes to privacy issues.

The principles, so far, are pretty simple. If you are going to be capturing a picture of someone on their private property, that’s going to typically fuel a “push back”. So, you should not be getting those types of photos or videos if you can help it. If you do, your policy should be to delete that footage. If your uploading it up into the cloud through one of the Third-Party software providers, you should be editing that footage out so it doesn’t become part of some other general data that gets licensed to some other Third Party over whom you have no control, because you might end up being responsible for all of that. If in fact you can actually picture someone’s face or identify the person by the location or by their appearance then you cannot use that in anyway which would appear an endorsement from that person. You couldn’t use a picture which showed a person’s face in order to market a good or service without their permission. That’s to be part of your overall approach in your Terms of Service on your website even though that is not governing the relationship with these people who are out there in the world,

Overall, instead of just capturing videos and photos, there should be a process in your system in which you review those photos and videos to remove anything that might result in a Third-Party privacy concern. We have, in part of our “Ops in a Box”, documents for sale for $350.00, even though Part 107 doesn’t require you to provide notice or to even get permission of Third-Party neighbors to a Drone flight, it is quickly becoming an industry standard. It feeds right into this privacy issue that we are talking about. In those forms, in the notice of UAV Operations, it tells the neighbors: What you are doing it? Why you are doing it? For Whom you are doing it? Who they should contact if there is a problem? If there is any incidental footage that captures private information about them, a person’s face, etc., tell them that you will be deleting it in order to be any concerns about privacy in order to set expectations and in order to make them feel more comfortable about your flight. I believe that that will become much more of the mainstream approach for Drone operations.

My name is Drone Attorney Enrico Schaefer and I have been talking about the current privacy debate on the Drone industry and we will see you next time.