Key points that Republicans, Democrats, and expert witnesses alike agreed about during this morning’s hearing on the future of domestic drone use:
Drones make surveillance cheaper, and increasing privacy risks. Miniaturization driven by advances in mobile computing and robotics also raises serious concerns; drones the size of hummingbirds already exist, and the NSA is rumored to be researching mosquito-sized platforms. And drones are designed to carry biometric sensors which use special software to recognize faces and microwaves to see through walls and clothing.
Existing legal precedents and regulatory regimes and frameworks leave major holes that could be exploited by private actors, including stalkers and corporations, noted Amie Stepanovich of the Electronic Privacy Information Center. The Fourth Amendment only applies to federal and state authorities, but under current precedent someone observed on his or her own private property from above by a drone probably does not have a reasonable expectation of privacy. The Federal Aviation Administration lacks the authority to regulate remote-controlled vehicles, including drones. University of Washington School of Law Assistant Professor Ryan Calo noted that the FAA has reached out to him for help overcoming a lack of privacy expertise as it develops standards, but this raises questions about the agency’s proper role. As for Congress, the legislative process is inadequately flexible and responsive, as the obsolete Digital Millenium Copyright Act -- and the uncertain climate of the committee hearing -- illustrates.
Private enterprises and individuals have legitimate interest in exploring drone technology. Drones may be used for agriculture, surveying, construction, and entirely new industries, yielding economic prosperity and thousands, perhaps millions, of new jobs. As such, all stakeholders desire a regulatory regime that will preserve civil and personal liberties while supporting commercialization and innovation.
There may be another path forward. Georgetown’s John Hasnas and NYU’s Richard Epstein among other legal experts offer the tort system as a flexible, responsive alternative to bureaucratic regulatory regimes. Torts are responsive, adaptive, and grounded in the common law tradition at the heart of our legal system. The Seventh Amendment to our Constitution states:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Digital technology is an oasis of vitality in a stagnant global economy, thanks in no small part due to a lack of onerous regulations. The government regulation advocated by the industry, policy, and legal experts at today’s hearing poses that risk -- though a trade group may welcome new barriers to market entry. In the interest of future prosperity, those seeking to navigate the opportunities and risks of radical technology should open themselves to radical alternatives.