The use of unmanned aerial vehicles (UAVs) has raised understandable concerns for legislators, leading some to call for legislation requiring that almost all uses of drones be banned unless the government has first obtained a court order. Privacy advocates have organized a successful lobbying campaign that has resulted in thirteen states enacting laws that regulate the use of drones by law enforcement. In many cases, this technology-focused approach produces perverse results, since it allows the use of extremely sophisticated omnipresent surveillance technologies from manned aircraft, while preventing the benign use of drones for mundane tasks. The appearance of UAVs in domestic skies raises understandable privacy issues that require thoughtful and sometimes creative solutions.
For those interested in taking aerial photography for commercial purposes, there are resources available to help. The United States has stated that “the use of an aerial map camera to photograph an industrial manufacturing complex from navigable airspace also does not require a court order under the Fourth Amendment.” Modelers have also taken aerial photographs from their model airplanes for their personal recreational enjoyment. Recognizing that technologies such as geolocation and automatic drafting can make aerial drone surveillance better protect privacy than human surveillance, legislators can adopt technology by drafting laws that require aerial surveillance devices to have systems to protect privacy. Linking these two concepts suggests that a property rights approach can provide a way to harmonize these separate political concerns and also address most of the concerns associated with aerial surveillance.
To hold law enforcement to account, legislators must require that the use of all aerial surveillance devices (manned or unmanned) be published on a regular basis (perhaps quarterly) on the website of the agency that operates the system. Paul Seibert, an accomplished aerial photographer, recommends wearing a 24 to 70 mm zoom lens when taking pictures from a helicopter. The helicopter is an extremely flexible aerial platform from which to take pictures, and just off a helicopter photography charter off the Na Pali coast of Kauai (Hawaii), some tips on helicopter photography can be shared. Generally, the Fourth Amendment does not prohibit aerial observations of a home cutout, as long as the government conducts surveillance from public navigable airspace in a way that is not physically intrusive, and government conduct does not reveal intimate activities traditionally associated with the use of the home.
Since the popularization of cheap drones, aerial imagery has gained great demand for events such as concerts or weddings. The right to prevent the government from carrying out aerial surveillance is inextricably linked to whether the public would have had the right to make the observation that the police made. Many critics of drones express legitimate concern that the government's collection of aerial images and videos allows for widespread surveillance that allows the government to know what all citizens are doing at all times, and will even allow government officials to review the images years after they were collected, revealing the most intimate details about a person's life. By requiring law enforcement to publish data or records, legislators can add citizen-centered political control that will help allay the fears of a society that does not yet know for sure how it should react to the growing presence of aerial surveillance devices in the skies of the United States.
The problem isn't technology; it's the ability of landowners to exclude aerial observations from certain points of view (that's a property rights issue). For those interested in taking aerial photography for commercial purposes, there are resources available to help them understand how to get permission for such activities. It is important to remember that technologies such as geolocation and automatic drafting can make aerial drone surveillance better protect privacy than human surveillance, and legislators should draft laws requiring aerial surveillance devices to have systems in place to protect privacy. Additionally, law enforcement should be required to publish data or records on their use of all aerial surveillance devices on a regular basis.