Keep Your Drone To Yourself: Balancing Privacy with Surveillance Needs

Privacy is a global concern that elicits more questions than answers…

Like the United States, European Union Member States have enacted data security laws that attempt to offer a consistent pronouncement for the protection of citizens’ privacy rights while at the same time allowing for the necessary flexibility for law enforcement agencies to do their jobs.

Particularly interesting in the European framework is the focus on the post-collection processing of the collected data. In the United States, much of the jurisprudence on the issue has focused on the pre-collection “reasonable expectation of privacy” to determine whether the surveillance method used as the outset could withstand scrutiny. However, a large piece of the puzzle is what happens to the data once it’s collected.

Of paramount importance for further study is the obligation to notify the individual(s) made the subject of surveillance, prior to that activity taking place, the disclosure safeguards that must be implemented to protect the data, and the retention and destruction requirements based upon applicable law. Of course, there are numerous laws currently in place — both domestically and internationally — that address these concerns in the context of, for lack of a better phrase, “run of the mill” surveillance, i.e., the United States’ Privacy Act of 1974 and the E-Government Act of 2002, in addition to Commission Nationale de l’Informatique et des Libertés, Act N°78–17 of 6 January 1978 on Information Technology, Data Files and Civil Liberties, the French Geo-Localisation [sic] Act of 2014 and the German Federal Data Protection Act, to name but a few. However, it appears that privacy implications –both pre- and post-collection — in the very specific context of unmanned surveillance conducted for law enforcement purposes is left largely unregulated.

Is what we have currently on the books legally sufficient to extrapolate and apply by analogy, or do we need a complete overhaul of the arguably applicable regulations? And, will that answer be driven by law enforcement agencies or by public opinion? If it is the latter, how much of what the public will demand will whittle away the stated advantages of domestic drone use? Or, in light of recent events, will the public demand more surveillance despite civil liberty concerns?

The author is an attorney working in a major metropolitan American city who focuses on public safety-related law. The author is part of The White Hat Syndicate, a Medium account launched on October 26 that publishes thought-provoking articles about cutting-edge homeland security topics. The six authors come from a diverse array of professional and personal backgrounds: legal, fire, environmental health, federal transportation security, and law enforcement.

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Opinions expressed in this essay are solely those of the author, and do not reflect the official policy of their employer, professional associations, the United States Naval Postgraduate School, the Department of Defense or the U.S. Government.