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Drones: The Bitter with the Sweet?
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.
Published in Law, Science & Technology
Hobbyists flying a few model airplanes and untold thousands of people flying camera-equipped drones do not strike me as the same thing.
I immediately think of how much more quickly we could search for lost persons in the Maine Woods…
Can drones be shot down? How about a law that says if a drone is over anyone’s property but that of its owner, it can be shot out of the sky with impunity. The exceptions would be drones clearly marked as belonging to the Maine Warden Service (search and rescue) or other legitimate public safety agency? (With the aforementioned being constrained by laws regarding illegal search and seizure, wiretaps, curtilage violations and so on?) It wouldn’t surprise me if customs developed whereby we all agree that its okay if the brown UPS drone lands on our front stoop, but we shoot the one belonging to the National Enquirer?
By the way, how does the UPS drone defend its packages from thieves?
Anyone who advocates banning drones should be required to go and actually use one for a while first – their mythical power will soon be exposed for the hysteria it is.
Drones are less useful for peering into windows than a decent telescope. Should we ban those as well? Drones aren’t stealthy, and make a terrible racket. So you can’t sneak up and watch people.
Non-commercial drones like the Parrot drones and the DJI phantoms can only stay airborne for a few minutes – less than 15 minutes in most cases.
Most hobbyist drones are no more dangerous to aircraft than are kites. They usually weigh a pound or two, and don’t go particularly fast. They pose no more threat to the public than a skateboarder or a slo-pitch game in the park.
The hype so far seems to be about the threat to aircraft. But it is already illegal to fly a model airplane in controlled airspace or within 3 miles of an airport. Just why do we need all these new regulations? How about we wait until there is some actual demonstrated harm, rather than rushing to regulate what could be a very important industry out of existence based on unsubstantiated fears and hysteria?
I don’t have a problem with regulations around really large commercial drones – vehicles that weigh 25 lbs or more and could really hurt or kill someone, and which have the capability to fly high into controlled airspace. But the new regulations are so crazy they make felons out of children who don’t register their toys with the government. That’s insane.
Perhaps not, except for the aspect of scale. So a limited access to a particular technology is OK, but expanded access is somehow not acceptable?
I see the commercial uses of UAV as opening exciting new prospects (environmental and security monitoring, remote sensing for agriculture, and so on) as far outweighing exaggerated concerns about privacy.
Remember when ham radio enthusiasts tried to shut down citizens band? No? A distant memory.
Kate’s on the right track. I’ll just shoot down trespassing drones.
Eric Hines
Please. Ham radios/CB=camera-equipped drones/private property? I think not.
Nothing I said has anything to do with appropriate commercial uses. If you’d like to discuss the use of drones by the average citizen to impinge on the property rights of other average citizens perhaps we won’t be talking about “exaggerated concerns.”
Framing the issue as “banning” drones is setting up a straw man. As is, in fact, the idea that opposition is “hysteria.” I’m assuming that you’re up on the technology, but the idea that a camera equipped drone is “less useful” than a telescope (or will be in the near future) strikes me as rather ridiculous. In truth, I don’t have a major problem with drones operated by private citizens as long as those citizens don’t have a problem with “losing” those drones if they fly over my property line.
I think the drone apologists here are missing an obvious point. Drones are not model airplanes – their maneuverability puts them in a different category. Drones are such effective surveillance platforms that they make surveillance casual. The prospect of ubiquitous casual surveillance causes some of us to stop and consider how to achieve some kind of balance.
I submit the best disinfectant is sunshine. Flying a drone in the public airspace is a public act, and the libertarians err in promoting anonymity in the public sphere. Require that all drones operated outside private airspace implement a protocol to provide their (operator’s) identity and GPS coordinates when queried by wifi.
I’m surprised no one has mentioned drones — hobbyist drowns — as aids to terrorism. A lot of truly horrific ordinance weighs less than a Webster’s Collegiate.
Just outlaw them and be done with it. Illegal surveillance is the scope of government not private citizens.
Just what kind of surveillance are you worried about? Peeping toms? Drone cameras are generally very wide angle, and not suitable for peering in windows. I’m not sure you can put a telephoto lens on one, as image stabilization may not be able to deal with it.
Furthermore, drones make a racket. They’re not about to sneak up on you and record what you are doing without you noticing it.
Furthermore, putting a camera on an aircraft is nothing new. Heck, I could put a downwards facing camera on a kite and fly it over your house a lot more stealthily than I could ever do with a drone.
If you’re worried about surveillance, shouldn’t you be worried about R/C cars? After all, I could put a camera on one and silently drive it right into your backyard and watch you all day, were I so inclined.
Seriously, what is the exact harm you are worried about? What do you think is going to happen if these devices go unregulated, that won’t happen with regulations?
Do you realize there is now a ‘national drone registry’, and that you have to register pretty much any toy airplane that has a camera on it, including kid’s toys like the AR Drone foam thing that you see in Best Buy? Did you know that every child who got one of these for Christmas and failed to file for registration with the government (and pay the registration fee) is now guilty of a crime punishable by up to three years in jail and a fine of up to #250,000?
Most of those foam drones are sitting in closets unused and forgotten. I’m willing to bet that 90% of them were NOT registered. So just like a lot of other overbearing, obscure laws do, the government just made criminals out of millions of people who have no idea. In what universe does this draconian law make sense?
And just what do you think the odds are that this registry database is going to be effective in any way? Canada spent $4 billion dollars on a federal gun registry that was riddled with errors and omissions and which never helped solve a single crime before we scrapped it.
This is a useless law that fixes a non-existent problem. About what you’d expect in the Obama era.
For an example of a non-insane government policy, here is what Britain’s CAA says:
What do you know – common-sense rules. No threats of jail time for not registering your toy with the government. Imagine that.
Professor, this being an area of your expertise, what about a landowner’s right to the air above property? I believe the number I have read is something like, “…and the air above to 500 feet.” I gather that in dense cities the property law is more complicated, but doesn’t a landowner own the rights of use of the air above, to 500 feet, in most cases?
Hear, hear … I think. (I think there’s a tiny Colorado town that already decided this a year or so ago.)
(Disclaimer: I want as few regulations and laws as possible limiting what people can do with drones, hewing as closely as possible to a simple protection of individual rights.)
I don’t understand why so many of these discussions of the possible threats of new tech. cite only their current capabilities. Most current weaknesses of drones will likely be solved, so they’ll eventually be nearly silent, have telescopic lenses, will stay in the air for hours, have near-perfect flight stability, etc. Why even mention these weaknesses as arguments against regulating them? They’ll go away practically tomorrow.
A few years ago, probably at National Review, someone was telling us all to simmer down about cameras in public because they couldn’t recognize faces and couldn’t store much data anyway. Their case depended substantially on features that would surely go away in a few years. What was the point of arguing that way?
Then how about modifying trespass laws to include trespass by drones, instead of dumping a bunch of expensive and useless regulations on the entire industry?
Because passing laws that only make sense if some future capability appears is expensive and a threat to liberty. You can justify regulating almost anything that way. How about waiting to see if those capabilities appear, THEN regulating them? I do not want my government to be in the business of passing regulations to counter some hypothetical threat that may appear in the future. That way lies serfdom.
Telescopic lenses might be possible, but then maybe not as the stabilization tech gets really ugly, and the precision and speed required in the gimbals and electronics would be expensive. Maybe electronic image stabilization coupled with very high density sensors would do it, but we certainly can’t do it today. And if we did, wouldn’t it be easier and less intrusive to simply pass a law saying that a drone cannot have such a lens? Or if it does, it can’t be flown within 500 meters of private spaces? That seems a little more reasonable than forcing every model airplane user to register with a federal registry, pay a registration fee, and continually comply with an increasingly thick and complex set of regulations.
I am willing to wager that you won’t see small drones that can hover for hours within ten years. I’d also be willing to wager that you won’t see small drones with telescopic ability for at least five years. And I’d also be willing to wager that you won’t see completely silent drones well, ever. Unless they are gliders. We still don’t have silent helicopters, and the military has been working on that for decades.
Big difference between stopping government surveillance of public places and passing regulations to stop private citizens from enjoying a hobby which to date has hurt no one. And in any event, just because some people make bad estimates for future technology doesn’t mean everyone does.
But, I’m wondering why citing current features is being used against laws and regulation if those features will cease, in a few years, to be usable as arguments. Principles last forever.
Never mind the foregoing. I think I confused myself.
Fine by me. But wouldn’t that also alienate the “drones for liberty” crowd as well? And, just for the record, I never advocated “expensive and useless regulations.” All I want is a clean shot :)
As for photographic capabilities, how about one of these?
Are you aware of any libertarians that want to do away with laws against trespassing on private property? I’m certainly not.
That’s a DJI Phantom 3. Its camera has a very wide angle lens – about 3mm. Given the sensor size, it’s roughly equivalent to a 14mm wide angle lens on a DSLR.
Here’s what a Phantom 3 can see if it flies right over your house:
In contrast, here’s my house in Google Earth, shot from a satellite:
Does it make you nervous to know now that satellites are taking pictures of your house almost as good as what an expensive drone can produce? How come there’s no fear of satellite surveillance?
If you want to get really crazy and actually fly the thing right down to the roof and peer in the backyard, this is about the best you are going to be able to do:
Due to the wide angle lens, that drone is a lot closer to that guy than you think it is. That drone is maybe 20 feet in the air and 20-30 feet away from that guy. If you were to fly this near to someone’s house, the thing would be making a racket that would alert the entire house. They sound like a screaming weed whacker from that distance. You’d be a lot better off just climbing the fence and using a DSLR, or taking photos with a telescope.
The other thing to note is that the cameras on these drones don’t have flashes, and they are terrible at seeing into shadows generally. So you could fly one right up to a window in broad daylight, and the only thing that camera would see is a black square. The only way you could even resolve an interior image is if you were flying at night, which would make the noise that much more obvious. Also, the DJI lights up like a Christmas tree at night.
Here’s a video of a Hubsan X4, a tiny quad that is also regulated and must be registered.
These things are toys that fit in the palm of your hand, and are usually flown indoors because they can’t tolerate any wind at all. They can only stay in the air for 3-4 minutes, they cannot possibly hurt anyone even if you are hit in the head with one at full speed. They wouldn’t do squat to an airplane, even if they could climb to 500 feet on a battery charge.
Look at the video there. Now, because this drone is tiny and meant to be flown in close spaces, you CAN fly it right up to a window. But have a look at what happens: The CMOS camera just can’t deal with the light differential, and even though it’s a dark-ish overcast day, the window is just a square of black. You can’t see a thing. And if the thing is that close to the window, the person on the other side is going to hear it and see it.
If the owner wanted to be a peeping tom, by the time he flew the thing over to that window it would be almost time to fly back. He might be able to loiter there for a few seconds. And, the range of this thing is so short that the man would have to be standing very nearby anyway, so there’s no anonymity.
But hey, if you think the guy who owns that little toy should do three years in jail because he didn’t register it with the government… I guess we’ll just have to disagree.
In my city, almost all the things I used to do as a child have been banned. Model airplanes are not allowed in any public park – even little foam gliders we used to toss around as kids. Model rockets? Good luck finding a place to launch them. You’ll have to spend huge bucks and join a rocket club, because they’ve been banned everywhere else. To my knowledge, no one has EVER been hurt in this city by a model rocket or a foam model airplane, but they are banned anyway.
How about HAM Radio? You’re not allowed to put antennas on your roof any more. You have to mount it on the ground using concrete piles, which pushes the price way out of reach of young adults or anyone else interested in ham radio who isn’t rolling in cash.
We are now at a point where we no longer live in a nation where the natural assumption is that you are free to do what you want unless it’s obviously reckless. Today we live under a regulatory regime that makes us feel like we are generally constrained in what we choose to do, unless we can prove to ourselves that the government will allow it.
You know what other technology carries risks with widespread private ownership? Guns.
I would think similar levels and types of regulation would be appropriate for drones. After all, they have a similar range of applications, from hobby use to self-defence (i.e. surveillance and counter-surveillance).
You proposed “modifying” laws, correct? That’s different than talking about “doing away with” existing laws. I’m sure you’re aware that the law relating to airspace above one’s property isn’t settled, but “apples and oranges” comparisons won’t help.
The horse has pretty much left the barn on satellites, hasn’t it? And, to my knowledge, an estimated 400,000 satellites weren’t sold to who knows who last holiday season.
I appreciate you posting this. IMO, it makes my point. And I’m guessing that the matter of noise (which is a bit beside the point anyway–I don’t care if I’m “warned”) as well as the capability of the cameras are improvements in progress. Now, this is like a kite?
Agreed +2. You have the right to fly your drone and I have the right to use my gun on it :)
OK. Here’s what I meant: I was trying to point out a weakness in arguments sometimes made by people telling us to settle down and not worry, regardless of their claims about laws and regulations one way or the other. I wasn’t making any point at all about whether we ought, or ought not, impose laws and regulations. I was saying it’s a weak argument, per se, to cite features that are likely to disappear in a short time with technological improvement.