Domestic Use of Drones

Although I am generally quite positive on the use of drones for targeted killing and such uses of forces abroad, I also think their use domestically raises many crucial privacy and other issues.  While many of those domestic use issues are about privacy, in some instances the issue is privacy in relation to a government use of drones while in others the question is the use of drones by private parties in relation to other private parties.  Drones are going to increase in their use and presence in many, many different ways – at all sizes and with many sensor configurations.  Not to get back to April Fools or anything, but to judge by the enthusiasm for drones among hobbyists in California, I believe it will be legal requirement to live there that you have your own drone.

The Brookings Institution is running a panel on this topic – domestic uses of drones – this afternoon, Wednesday, 2-3:30 pm. You can register and attend in person, or you can catch the web streamed version.  It has a stellar lineup, including folks from the ACLU, Heritage Foundation, and Brookings.  I will be addressing something of particular interest to me – private party to private party uses of drones, and the questions that emerge from that for privacy.  I don’t think we have an adequate legal model for what I believe is our evolving social sense – which one would want to see reflect both in informal social norms as well as in some ways embedded in law – of when and where one has an expectation of privacy.  Drones, particularly drones combined with sensor technologies and the ability to stream, identify people, and post to the web, have a strong potential – no, let me be stronger – inevitably will conflict with that social expectation of privacy in important ways.

There can be a limited but still appropriate criminal law role for regulating that expectation of privacy – essentially Peeping Tom laws or in extreme cases, criminal anti-stalking orders.  But in private party to private party interactions, involving drones, surveillance, and privacy, I believe the appropriate responses largely come from existing bodies of law tweaked and updated – nuisance and the quiet enjoyment of property doctrines, for example.  But I suppose I am particular interested in the changing perception of privacy, intimacy, broadcast, and dissemination, in which drones are an important new link in a chain of the exposure of a person, and perhaps the constant exposure of a person.

I often read that essentially the younger generation – and the older one – does not care at bottom about privacy, at least not enough to do anything about it, or to make tradeoffs in terms of new technologies and applications, such as FB or GPS tracking, etc.  I’m not sure I think it’s really that way – on the contrary, my sense of high school students and undergraduates – leave aside law students – is that they have a remarkably sophisticated “bundle of sticks” approach to privacy issues, and believe that it is deeply socially constructed.  Meaning, that they should be able to have social and legal rules that say that something that is apparently in the “public” domain is there for one purpose legitimately but not another.  The FB picture from the college trip to the beach is there for one kind of purpose, but not for purposes of employer surveillance.

This can be regarded as sophisticated or naive, depending on how one sees the realism of constructing and enforcing legal rules that purport to distinguish single sticks in the bundle of sticks, so to speak.  It can also be seen as wanting to have your cake and eat it too, in terms of being able to parse what was otherwise just public and private.  But my sense of young people, particularly, is not that they think everything is or should be public for all to see, but instead that they have a highly differentiated sense of kinds of public and kinds of private, and that the law should catch up to that.  I think in principle that they are right – being older and wiser, however, I have considerable doubts it will turn out that way.