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It's Complicated

Lawmakers Propose Dozens of UAS, Location Privacy Bills

Dee Ann Divis
It’s spring and privacy proposals are popping up in abundance, threatening to complicate the lives of law enforcement officers, spoil the landscape for some location-based businesses and choke off the U.S. market for commercial unmanned aerial systems before it gets off the ground.

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It’s spring and privacy proposals are popping up in abundance, threatening to complicate the lives of law enforcement officers, spoil the landscape for some location-based businesses, and choke off the U.S. market for commercial unmanned aerial systems (UAS) before it gets off the ground.

The activity in two arenas — geolocation privacy and privacy from prying via UAS — was initially sparked by shifts in the legal landscape. (Note: UAS refers to both the unmanned aerial vehicles, UAVs aka drones, as well as the ground infrastructure required to operate them.) In both cases, however, it is now being fueled by worries over the impact of technical advances.

Geolocation Privacy
The use of GPS tracking devices was the focus of a Supreme Court ruling in 2012 that said using such equipment constituted a search and therefore required a warrant. Because the Washington, D.C., police did not have a valid warrant when they tracked suspected drug dealer Antoine Jones, the evidence in the case, U.S. v Jones, was thrown out.

Although the judges were unanimous about the need for a warrant, they were divided in their opinion about why. The foundation of the majority opinion was the action of actually putting the device on the vehicle — that is, accessing private property for the purpose of obtaining information.

This was different from the underlying logic used by the United States Court of Appeals for the District of Columbia Circuit when it decided earlier to overturn Jones’s conviction based on the amount of information a GPS tracker could collect — far different from that which could be gathered under normal human-based surveillance. In that court, the capability of the technology to implement persistent surveillance —round-the-clock over extended periods of time — is what made it a search. Minority concurring opinions in U.S. v Jones and other cases have also raised the issue of whether warrantless persistent surveillance violates individuals’ right to privacy.

The Supreme Court did not rule on whether it would be necessary to get a search warrant for surveillance that did not involve physically placing a GPS-based tracking unit on a vehicle or tapping the vast vats of location data now collected via other technology such as cell phones, toll booths, OnStar, and the Internet — but it left the door open. The opinions written by the judges made it clear that they were aware of what was now possible and were poised — perhaps — to set new rules for collecting location data.

“What a majority of the justices said in two different concurrences — that any prolonged location tracking could be considered a search no matter what the method of searching was. And I think that is really important,” said Allie Bohm, an advocacy and policy strategist at the American Civil Liberties Union. “Obviously that was a concurrence to the decision; so, we would have to see another case to know exactly how far they are going there.”

Lawmakers are not waiting for a test case. The ruling sharply raised the profile of location privacy issues and created confusion as to how police are to proceed. Legislation targeting different aspects of geolocation privacy has already been introduced in at least 11 states and the U.S. House of Representatives, and is expected before the end of the year in the Senate.

“Location information is incredibly sensitive,” said Bohm. “Where one goes reveals a lot about who one is. Are you at a gay bar? Are you at an Alcoholics Anonymous meeting? Are you at a reproductive health clinic? Are you at a fundamentalist church? Are you at a mosque? Are you having an affair? Your location can reveal that information.”

The bills seem to fall into several categories. At the state level, lawmakers are working to clarify what police must do to ensure that location tracking information is admissible in court. According to Bohm there really have been no standards up to now.

The ACLU, she said, launched a coordinated public records project last summer that queried over 380 law enforcement agencies in 34 states and Washington DC to find out about their location tracking practices.

“What we found is that the legal standards that they follow really, really run the gamut,” Bohm said. Some states had been getting warrants, while others have not. In some states, such as Hawaii and Kentucky, state and local police were following different rules for obtaining warrants.

Last year Virginia signed into law a measure clarifying police procedures. Privacy bills were introduced, but did not pass, in half a dozen other states. This year bills are pending in Maryland, Iowa, Illinois, Kentucky, Massachusetts, Maine, Oklahoma, Oregon, Texas and, again, in Virginia, according to Bohm.

Some of the bills are limited to GPS tracking while others, as in Illinois and Kansas, are more comprehensive, covering cell phones and other avenues of monitoring someone’s location. There is particular energy behind the legislation in Texas, Bohm said.

“And I suspect we’re just going to see more of that because the Supreme Court has really invited that sort of legislative activity,” she said. “We’re going to see both the folks who want to keep it narrowly to GPS tracking and we’re also going to see the folks who say, ‘Well, actually, if we are really being forward looking, it is not just the GPS tracking devices that are searches and invade peoples’ privacy and get really personal information. It is actually all location tracking, and we’re going to go broader.’ ”

Congress Steps Up
Congress, too, is moving to limit the sharing of geolocation information.

The Online Communications and Geolocation Protection Act (HR 983), introduced on March 6, addresses a privacy loophole created by services like Gmail and social networking sites. Though law enforcement must get a warrant to access an archive of e-mail stored on your computer, the same protec-tions do not exist for information voluntarily given to a third party. The theory had been that, if you’ve given information to someone else to hold, then it’s not private — and therefore not protected.

“When current law affords more protections for a letter in a filing cabinet than an email on a server, it’s clear our policies are outdated,” said co-sponsor Rep. Suzan DelBene, D-Wash.

The bill would require government agents to have a warrant to access information held by third parties. It also specifically prohibits the interception, use, or disclosure of location information without a warrant or the express permission of the person involved — except in certain emergencies. Interestingly, it also prohibits those who hold such information from giving it out.

The Senate is also expected to take up location privacy legislation. A staffer confirmed to Inside GNSS that Sen. Al Franken, D-Minnesota, plans to reintroduce the Location Privacy Act (LPA) before the end of the year. The bill, as amended, last session sought to protect cell phone users from having their locations revealed by apps on their phone without their express permission. It would also act against those using location software and information for stalking purposes.

The groundwork already has been laid for the LPA, which was approved with bipartisan support last year by the Senate Judiciary Committee. Some changes in the bill’s language are likely, however, as a number of those who spoke in favor of the legislation just before the committee approved it also said they hoped to work with Franken to address some concerns. Most of the changes mentioned seemed to be aimed at allaying the concerns of businesses that want location information for commercial purposes or were anxious about the effect of having to ask customers for permission to use that information.

The 2012 version of the LPA had allowances for law enforcement officers to obtain information “pursuant to any lawful authority or activity.” The options under such authority, however, just got smaller.

On March 5, in a ruling that could encompass geolocation information, Federal District Court Judge Susan Illston in San Francisco ruled that national security letters violate the U.S. Constitution. Federal officials have been using such letters to obtain information about customers from telecommunications companies and service providers like Google without going before a judge. Federal officials also have been able to order those served the letters not to talk about them.

“In today’s ruling the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers,” said the Electronic Frontier Foundation (EFF) in a statement. “Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional.”

EFF had helped an unnamed firm challenge the use of the letters.

Unmanned Aerial Systems
Related by some technical elements — but otherwise distinct — are concerns about devices that are not attached to your car or carried in your pocket that nonetheless, privacy advocates fear, can still reveal where you are.

The Federal Aviation Administration (FAA) predicted in March that at least 7,500 UASs would be operating in the United States within five years of the industry being “enabled,” which the report seems to suggest means when UASs are integrated into the National Air Space or NAS.

Congress put NAS integration on the fast track last year when it ordered the FAA to complete the job by 2015. The possibility of thousands of UAVs in the skies has alarmed people across the country and some 30 states are considering legislation on the issue — a number that could easily grow.

Although all of the bills appear to be centered around Fourth Amendment–based privacy considerations, they are taking disparate approaches, said Rich Williams, a policy specialist with the Criminal Justice Program at the National Council of State Legislatures.

“A lot of [the state bills} address procedures for law enforcement to obtain a warrant — what should be in the scope of that as they do it,” said Williams, “There are some (bills) that just have a ban to provide for more study — a certain number of years. Other ones have requirements that (UASs) be in compliance with the FAA, some require that there not ever be a weapon mounted to them. Some require that you can’t use facial recognition or biometric technology attached to them.”

Thus far, nothing has been signed into law, Williams said, although there is “a moratorium bill that’s with the Virginia governor. That’s as far as one’s gotten so far.”

The Virginia bill would restrict the use of UASs by state and local law enforcement and regulatory agencies for two years while the commonwealth studies the issue. Some lawmakers had reportedly wanted to specifically prohibit state and local law enforcement from using UASs for warrantless searches, but instead the General Assembly, with overwhelming bipartisan support, voted to wait.

The bill has exceptions for emergencies, the National Guard, and “for purposes other than law enforcement, including damage assessment, traffic assessment, flood stages, and wildfire assessment.” It also does not address private use or research — a possible saving grace for the state, which is seeking to become one of the FAA’s six new UAS test sites. It is not clear whether Gov. Bob McDonald will sign the bill.

One Virginia lawmaker had wanted to limit private use. Sen. Frank Ruff of Mecklenberg County introduced a bill that said using an unmanned system “for the sole purpose of monitoring and photographing persons who are lawfully hunting on private land if done by a private person who does not have the permission of the landowner” would be unlawfully impeding hunting.

Ruff said he was inspired by an incident in South Carolina where animal rights activists tried to use a UAV to take pictures of a pigeon shoot — an event where captive pigeons are flushed from boxes to rise into the sky and be shot for sport by a circle of hunters. Few of the birds escape.

The drone, reportedly owned by SHARK, SHowing Animals Respect and Kindness, did not escape either. It was shot down by the hunters.

Ruff’s bill may have more behind it than appears at first glance, however.

Virginia, which has been called the fox hunt capital of the nation, still allows the highly controversial practice of fox penning, also called hunt clubs. In one version of this practice, described in news reports, a wild fox or coyote is put into an enclosed area and then a pack of hunting dogs is turned lose upon it in an ostensible training exercise. The dogs chase, corner, and often tear to pieces the wild animal that, critics insist, often has no way to hide or escape.

A bill before the Virginia General Assembly this session would have banned another type of staged hunt — competitive events where hundreds of dogs are let loose in enclosed “fox preserves” to hunt down the trapped foxes and coyotes.

“Wild animals taken for fur, for food or other by-products is an acceptable part of wildlife management,” said bill sponsor Sen. David W. Marsden, D-Fairfax, reported Powhatan Today. “But capturing wild animals, placing them in pens and chasing them with dogs for our entertainment is not part of Virginia’s hunting tradition.”

A news report earlier this year suggested that an UAS might be used to capture such enclosed hunts on film — something that could have been damaging to the clubs. According to Powhatan Today, five fox pens operate in Mecklenburg County, which Ruff represents.

Prying Eyes in the Skies?
UAS concerns, however, go far beyond the world of hunting. It has been suggested more than once that paparazzi could use UAVs to snap pictures like those of the Duchess of York, the expectant mother of the next heir to the British throne, who was portrayed topless in photos splashed around the world after her privacy was invaded by a photographer with a telephoto lens.

Business owners might not want their operations observed for competitive reasons or might be anxious to avoid the eye of regulators. A slaughterhouse in Texas, for example, found the Texas Environmental Crimes Task Force on its doorstep after an amateur UAV operator spotted a river of blood coming from the facility, according to a report on POPSCI.com.

And then there are the residents of Alameda County in California whose sheriff caused an uproar when he wrote in a grant application for a UAS that it would be used, in part, for intelligence gathering and surveillance.

The privacy issue has drawn national attention, especially given the long running, high-drama political debate over the Obama Administration’s use of drones to kill targeted terrorists. Although the administration has already said it does not have the authority to use a UAS to kill U.S. citizens on U.S. soil, legislation now in Congress would make absolutely sure. Specifically, the No Armed Drones Act of 2013 or NADA bill (H.R. 1083) would prohibit use of an unmanned system as a weapon in the national airspace. The NADA bill, sponsored by Rep. Michael Burgess, R-Texas, has only one co-sponsor.

Another UAS-related bill, however, has attracted broader support. The Preserving American Privacy Act of 2013 (H.R. 637), sponsored by another Republican from Texas, Rep. Ted Poe, has a total of nine bipartisan cosponsors. It requires police to obtain a court order or warrant to be able to use a UAS to gather evidence. Although it includes exceptions for emergencies, the measure mandates that any evidence gathered will be thrown out if a court does not concur with the use of the UAS within 48 hours.

The congressional session has just gotten started, and these two bills may not be the last. The prospect of working through still more rules is alarming to an industry already seething over flight-limiting regulations that slow research and make it difficult to test prototypes.

“I think there’s the potential, depending on the wording of specific legislation, that it could have a chilling effect on research,” said Alan Frazier, assistant professor of aviation at the University of North Dakota.

Industry advocates say the battle between Congress and the White House over the use of military drones to do surveillance and strike at targets in the conflicts overseas has colored the privacy debate and confused the public about what it would mean to open the skies to UASs in the United States.

Civil UASs would be used in the domestic air space for crop dusting, emergency response, monitoring pollution, checking pipelines, evaluating accidents, and searching for lost hikers, they say. The aircraft are unarmed, generally small, and often limited in what they can do by battery life and the need for line-of-sight control.

Civil UASs are already in use in other countries. If the industry was allowed to operate in the United States, UAS applications could fuel $13.6 billion in economic growth and create 70,000 jobs within the first three years, according to a March report by the Association for Unmanned Vehicle Systems International (AUVSI). But privacy concerns have already slowed FAA’s efforts to integrate UAS into the nation’s airspace and could continue to impede progress.

AUVSI is working to address the issue and has established a code of conduct that directs operators to “respect the privacy of individuals.”

“Obviously concerns that people would have about privacy are valid concerns. That’s true with any new technology that’s introduced,” said Michael Toscano, AUVSI’s president and chief operating officer during a webinar on the economic study. “So, those issues are being addressed with the stakeholders involved to make sure that either the current privacy laws that we have are going to be able to apply or to understand what’s going to be needed to make sure that the utilization of this technology is done in a proper, professional, and adequate way so that no citizens privacy is being violated.”

The University of North Dakota has created a new group to help address privacy concerns at the grassroots level. UND has established what may be the first oversight group for UAS research. University staff, representatives from local government and law enforcement, and members of the general public com-prise a UAS compliance committee.

“The goal was to have a very broad representation of the community to try to more accurately represent the community’s values and beliefs in regards to the use of unmanned aircraft systems,” said Frazier. “The principal issue right now that the committee is addressing is privacy.”

Frazier agreed that UAS operations raise potential issues but believes that policymakers are looking in the wrong place.

Any real privacy problems, he suggested, are not going to come from “a tightly controlled government agency with layers of oversight and policy and procedures a foot deep. . . . It is going to come from unregulated individuals that are inappropriately using these (UASs).”

For example, a 14-year-old neighbor, he said, could go out and buy a small UAV, fly it in his backyard, and use it to take pictures of Frazier’s sunbathing daughters “and I really don’t have any recourse for that and there are no controls over him.” On the other hand, someone working for the government or his university would have to go through an extensive process with the FAA to get a certificate of authorization, pass an inspection, and continuously demonstrate competency.

“We have all these safeguards, yet the kid next door who’s 14 can use (UASs) indiscriminately,” Frazier added. “There is a real disconnect there.”

Copyright © 2014 Gibbons Media & Research LLC, all rights reserved.

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