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Senior Advisor

OBSERVATIONS FROM ABOVE: UNMANNED AIRCRAFT SYSTEMS AND PRIVACY

Here is a Harvard Law Review article that discusses the many pro's and con's of UAS.  There are indeed areas of privacy law that are yet to be developed.  Gray areas if you will.  And, the states are not totally without power when it comes to how you operate in air space, although the FAA has a long standing position of federal preemption in that field.

 

It's long but gives a good view of the current various points of view.

 

http://www.harvard-jlpp.com/wp-content/uploads/2013/04/36_2_457_Villasenor.pdf

 

Here are a few excerpts:

 

"However, like any technology, UAS can be misused. The most
common concern regarding domestic UAS relates to their potential
impact on privacy. This is a legitimate concern. Existing laws
and jurisprudence provide an important foundation, but they
also leave many questions unanswered. And although in some
respects UAS simply represent one more manifestation of the
always complex intersection between technology and privacy,
they are also unique in making it possible, for the first time ever,
to easily and inexpensively obtain observations from above."

 

"Recognizing that UAS raise unique issues that “may differ
substantially from manned aircraft operations and systems,”64
the FAA created a new Unmanned Aircraft Program Office in
early 2006.65 In accordance with policies established well before
the enactment of FMRA, operators of UAS engaged in public
aircraft operations are required to obtain a Certificate of Authorization
(COA).66 Civil (i.e. private) UAS operators need a
“special airworthiness certificate.”67 Use of UAS for commercial
purposes is currently prohibited,68 though that is expected to
change by 2014."

 

"Although much of the attention regarding UAS privacy has focused
on government use and the Fourth Amendment, it is nongovernment
use that is likely to raise some of the most significant
privacy challenges in the coming years. For private entities, which
are not bound by Fourth Amendment restrictions that apply to
the government, the key constitutional question is the extent of
their First Amendment privilege to gather information."

 

"CONCLUSION
The only certain aspect of the debate about unmanned aircraft
and privacy is that it will be contentious. Some people believe
that there is no need to create new laws,315 whereas others
believe that UAS “could be just the visceral jolt society needs to
drag privacy law into the twenty‐first century.”316"

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