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A recent post in the tabloid British press offers an early warning to an issue that is surely percolating up right now in the United States. Quite simply, what should be done with privately owned drones.
The problem has become insistent because as the price of drone technology goes down, the deployment of drones for both good and for evil raises some difficult choices. On the positive side it is easy to see how drones can ease the work of legitimate surveillance needed to determine boundary lines in remote locations, track the movement of herd animals in order to manage their behavior, or to deliver everything from hot food to needed documents promptly. Here the ends are legitimate and the means chosen are conducive to these ends. The appropriate response is yet another salute to technological progress that makes things better for us all.
Then again, there is the other side of the story. The wider use of drones opens up the following scenarios. The drones will become menaces as they crash into people, cars, airplanes, and each other. Or they can become observation outposts for people to snoop into the private lives of other individuals by hovering near open windows and parked cars.
The first point to note about this new turn of events is that there is no debate over what kinds of conduct are permissible and what kinds are not. The traditional legal and social norms of proper behavior carry over to these new technological issues without a hitch. The real question is the kind of remedies are appropriate to meet the challenge. It is here where the rubber meets the road.
The first generation remedies are individual lawsuits brought by people who have been hurt by these behaviors. These could be suits for invasion of privacy, or for physical damage caused by drones. No one wants to rule these out, but by the same token, no one thinks that they are sufficient to meet the challenge of improper, often, outrageous, behavior. There are too many people who will be hard to track down, and too many people who will not have the money pay damages even if they are caught. So, as often happens, the right question is what regulatory system is best able to deal with the challenges.
It is here where the choices are numerous and the outcomes unclear. One possibility is to require that all users of drones receive some license from the Federal Aviation Authority to fly their drones, so that they can be punished for the simple act of flying, without proof of actual damage. That will deter a lot of people from flying — including those whose activities are relatively harmless. The earlier the remedy the greater the risk of over-inclusion.
A second view is to have public monitors to see that certain kinds of space restrictions are observed. Fly into a prohibited space, and you can be fined. Fly near an open window, same result. That system requires that each drone have some kind of identification number or signal on it, which is not easy to accomplish. Quite simply drones are a lot cheaper than planes and much more numerous. The logistics of keeping up with thousands of drones used for multiple purposes are rather hard to put into place, and implementation of that system could slow down drones that are put to proper use.
A third alternative is to allow for criminal sanctions under existing law for various kinds of illegal behaviors. These are tougher sanctions, after the fact, and thus cheaper to administer than the other regulatory systems. But again the risk of nondetection is serious enough so that this system leaves gaps.
At this point, someone would say that it is best to mix and match various partial systems, which may reach more illegal transactions, but at far greater cost. So the ultimate lesson here is the same that it always is. Finding out what conduct is right and what is wrong is often the easy part of the business. Getting the right remedy is the hard part.
The correct attitude of professors like myself is to think hard about the various options, and hope that people who have concrete data, instructive anecdotes, and technological sophistication can work through this problem, with just a gentle nudge from lawyers whose expertise is the institutional design of remedies. Just banning drones won’t cut it. But accepting the status quo probably won’t cut it either, especially as the frequency of violations of basic norms of privacy and safety increase. Much work remains to be done.