By Mark Wolf
Drones are among us, above us and watching us. They come in a variety of sizes, shapes and intended uses. They can watch oil pipelines and peep into private places.
They have been the subject of passed or introduced legislation in most states, much of it centered on the use of drones by law enforcement, with more certain to follow.
"Leave drones out of your privacy laws," urged Eric Johnson, the Lockheed Martin associate professor of avionics integration at Georgia Tech. "If your privacy is being violated, do you care if there is a person in the aircraft or a person holding a camera or a hidden camera stuck to a tree?"
States are elbowing for a piece of a drone research windfall and R. Steven Justice, director ofthe George Center of Innovation for Aerospace, estimated drones would be responsible for 1,949 jobs, an economic impact of $379 million and $3.72 million tax impact in Georgia by 2017.
The "reasonable expectation of privacy" standard in the context of the Fourth Amendment to the U.S. Constitution, is "the worst possible model for state legislators who want to draft effective legisation (regarding drones)," said Morgan Cloud, a law professor at Emory University and a leading Fourth Amendment scholar.
Cloud said the privacy expectation "must be one society thinks is reasonable" which means itis ultimately defined by a majority of Supreme Court justices. "That means it changes over time. Reasonableness is a standard, not a rule. What is reasonable changes over time."
The recently-enacted Texas law, Cloud said, was a good example of using precise language: "The crime under the Texas privacy statute is that a person commits an offense if he uses an unmanned aircraft to capture images of people or property with the intent to conduct surveillance. I suggest to you that most private citizens, lawyers and even some judges can understand this."
Representative Lance Gooden, who authored the Texas law, said "people came out of the woodwork after I introduced it and the final product said if you're going to capture an image you can't do it with the intent to conduct surveillance." Law enforcement agencies opposed the bill, seeking an amendment to use drones "for legitimate law enforcement purposes," which lawmakers determined was too board.
"(Drone) manufacturers wanted an exemption for use during production and development but we said, 'What are you doing that requires an exemption from the intent to conduct surveillance," he said. Some exemptions were granted such as to utility companies to use drones to survey pipelines without bringing vehicles onto private land.
Rep. Shelley Hughes of Alaska sponsored a resolution establishing a task force to study the use of drones.
"I researched the activity that is being done (by drones) and decided a lot of good is being done," she said. "A tanker was guided by a UAS to get fuel to Nome. a downed aircraft was found by UAS. We were able to keep sea lions off the endangered species list because we were able to get an accurate count using drones," she said.
"We need to address privacy concerns but surveying is not the same as surveillance. Privacy became an issue when the first caveman stepped out of the cave. If an action is a crime it's the action itself, not the technology.
"I don't want a small helicopter hovering outside the bathroom window while I'm taking a shower but I also don't want to throw the baby out with the bath water."