By: Anthony Kimery
Rep. Ed Markey (D-Mass.) Wednesday issued a “discussion draft of legislation that would ensure … privacy considerations are included in the rulemaking process for licenses for unmanned aircraft systems, and that the public is made aware of drone licenses and times and locations of commercial drone flights.”
The secretary of transportation is scheduled to develop a comprehensive plan for non-government drones as soon as November.
Markey’s draft bill, the Drone Aircraft Privacy and Transparency Act of 2012, would amend the Federal Aviation Administration (FAA) Modernization and Reform Act to include provisions on FAA rulemaking, data collection, data minimization, enforcement and disclosure, an announcement from Markey’s office said.
“The FAA estimates that by 2020, there could be 30,00 drones in use over American skies,” the announcement stated, adding, “many drones are designed to carry surveillance equipment, including video cameras, infrared thermal imagers, radar and wireless network sniffers, with the capability of collecting sensitive information from the skies above. The FAA has already begun issuing limited drone certifications for government entities.”
Currently, Customs and Border Protection’s (CBP) Office of Air and Marine (OAM) deploys nine Predator-B unmanned aerial systems (UAS) to patrol US borders and provide surveillance for border security and disaster response. However, in July the Department of Homeland Security’s (DHS) inspector general (IG) said in an audit that CBP had not adequately obtained resources to support its unmanned aircraft and admonished the agency for failing to properly plan for use of the drones.
DHS’s IG said CBP’s OAM had never appropriately budgeted and acquired all of the necessary resources to support these UAS, and that CBP had not figured out how to best allocate and track the flight time of UAS in support of its own missions or at the request of others.
“When it comes to privacy protections for the American people, drones are flying blind,” said Markey, senior member of the House Energy and Commerce Committee and co-chairman of the Congressional Bi-Partisan Privacy Caucus.
Markey said, “Drones are already flying in US airspace – with thousands more to come – but with no privacy protections or transparency measures in place.”
Consequently, the veteran lawmaker said, “We are entering a brave new world, and just because a company soon will be able to register a drone license shouldn’t mean that company can turn it into a cash register by selling consumer information.”
“Currently there are no privacy protections or guidelines and no way for the public to know who is flying drones, where and why,” Markey noted, stressing that, “the time to implement privacy protections is now.”
Markey said his “discussion draft will help ensure that pilotless aircraft isn’t privacy-less aircraft and the strongest safeguards are put into place for Americans.”
Specifically, Markey’s legislation amending the FAA Modernization and Reform Act would add the following provisions:
- The secretary of transportation must conduct a study of privacy impacts of drone use in consultation with the Department of Commerce, the Federal Trade Commission and the Department of Homeland Security Privacy Office. A report must be issued to Congress;
- The FAA must include privacy considerations in its overall rulemaking process for drone licenses, using as the Federal Trade Commission report titled ‘Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers’ as the standard;
- The FAA may not issue licenses unless the application includes a data collection statement that explains exactly what kind of data will be collected, how that data will be used, and how the licensee will protect privacy;
- Law enforcement agencies and their contractors and subcontractors must include an additional data minimization statement that explains how they will minimize the collection and retention of data unrelated to the investigation of a crime; and
- The FAA must create a publicly available website that lists all approved licenses and includes the data collection and data minimization statements, any data security breaches suffered by a licensee, and the times and locations of drone flights.
“We don’t want to live in country with ‘eyes in the sky,’” Amie Stepanovich, associate litigation counsel for the Electronic Privacy Information Center (EPIC), said in a statement that accompanied Markey’s announcement.
Stepanovich said, “EPIC has petitioned the FAA to develop privacy safeguards and we have urged Congress to crack down on surveillance by drones” and described Markey’s bill as “important legislation that will help protect a fundamental American right.”
The Electronic Frontier Foundation (EFF) also “supports Congressman Markey’s efforts to build privacy protections and greater transparency into the drone authorization process,” added Jennifer Lynch, EFF staff attorney. “Drone surveillance, whether by private or public entities or by law enforcement, poses a real threat to democratic societies, and this bill is a step in the right direction toward limiting that threat.”
On April 19, Markey and Rep. Joe Barton (R-Texas) sent a letter to the FAA asking about the potential privacy implications of non-military drone use across the nation.
According to Markey’s office Wednesday, the lawmakers “are awaiting response from the [FAA].”
“As a leader in privacy, consumer protection is always at the forefront of my mind,” Barton said in a statement at the time he and Markey wrote to the FAA. “When the domestic use of drones was legalized in the FAA Modernization and Reform Act, I knew that the usage of these unmanned aircraft would bring a great benefit to our local and state governments, as well as some businesses.”
But Barton cautioned that, “if used improperly or unethically, drones could endanger privacy and I want to make sure that risk is taken into consideration. I will continue to work with my colleagues to champion every American’s right to privacy, and I look forward to the responses from the FAA.”
In their letter to the FAA, Markey and Barton asked the agency for answers to the following privacy questions on drone use in the US:
- What procedure does the FAA currently use to grant temporary licenses for drones?
- What privacy protections and public transparency requirements has the FAA built into its current temporary licensing process for drones used in US airspace?
- Is the public notified about where and when drones are used, who operates the drones, what data is collected, how is the data used, how long is the data retained, and who has access to that data?
- How does the FAA plan to ensure that drone use under the FAA Modernization and Reform Act is transparent and protects individual privacy rights?
- How will the FAA determine whether an entity applying to operate a drone will properly address these privacy concerns?
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