By Keisha M. McClellan • June 28, 2018•Writers in Residence, Careers, Firms and the Private Sector, Politics and Government, Law School, Choosing a Career and Landing a Job, Issues, Other Issues
In his Time Magazine report “Drones Are Here to Stay. Get Used to It,” Alex Fitzpatrick observes that “with any technology, there are certain inflection points when it goes from being something perpetually in the near future to being a part of everyday life.” And this inflection point of drones becoming an everyday part of life is certainly in our foreseeable future. From use in news gathering, sports and entertainment, humanitarian efforts, corporate partnerships, law enforcement, and by general hobbyists, drones present a range of complexities that garner both praise and criticism. For the legal profession, this technology demands an exciting new world of expertise.
Consider the myriad of ways drones beneficially impact lives while also adding complex legal and societal challenges:
Drones offer a dimensional perspective to an active news story. A drone operator protesting the Dakota Access Pipeline in North Dakota (“Standing Rock”) captured footage that conflicted with the narrative presented by authorities and explained that for years, “the story has been told for us, not by us. This is our opportunity to tell our story.” The FAA’s subsequent enactment of a no fly zone over the Standing Rock protests drew accusations of First Amendment violations from critics. Conversely, the government said the Temporary Flight Restriction would ensure the safety of law enforcement aircraft from colliding with airborne drones. As a result, a Dakota Access pipeline protester faced imprisonment for shooting drone footage of the protest.
Drones make traditional farming methods more efficient. Foreign investment in agricultural uses of drones is transforming farming. Drone images send farmers “individual sections of their fields; an average shot covers several hundred acres. The photos are displayed on PCs, iPads, or smartphones as ‘heat maps’ that identify ailing and healthy sections of plants using color codes.” Because of drone technology, farmers can survey their crops and identify problems in a fraction of time than it would take for them to canvas their property in person.
Drones help save lives. From humanitarian airdrops of aid, to remote communities, to dangerous search and rescues, drones are increasingly important tools in disaster relief efforts. For instance, when Hurricane Maria decimated Puerto Rico and communications to and from the island, drones played key roles not just in search and rescue, but also in re-establishing cell service: AT&T used a drone to provide an internet connection for up to 40 miles in every direction from a store parking lot on the island.
Drones revolutionize delivery methods across the globe. Although it has been widely reported that Amazon is building drone delivery systems into its business model, CNN reports that East Africa is leading the world in drone delivery.
Drones raise ethical issues. The military defends its use of drones for precision kills as limiting risk to civilians and U.S. forces. But the military method also has its critics. For example, Google “[e]mployees fear that the [Maven] project, which provides artificial intelligence tools to the military, could be used in fatal drone strikes.”
Drones test jurisdictional limits of oversight and individual privacy. There are issues of oversight because drones fall within the purview of the FAA yet many drone-related concerns are unique to local communities. The limitations within the federal government effectively policing drone activity across the nation necessitate collaboration at the local level to keep the public safe. “Handling local issues, such as whether your neighbor can get a package delivered by drone at midnight, would be a difficult challenge for the Federal Aviation Administration.”
Moreover, the capacity for drones to conduct surveillance and evidence collection is an advantageous crime-fighting tool. However, the potential for the government to commit Fourth Amendment violations of people’s right to be free of warrantless search and seizures of their “persons, houses, papers, and effects” is also a grave concern. Katz v. US defined a Fourth Amendment search as requiring a person to have both an actual (subjective) expectation of privacy and that the expectation be one that society recognizes as reasonable. Drones' potential to spy on people unawares (secretly recording conversations and video) and to use clandestine facial recognition, all satisfy the kinds of privacy concerns that the Katz Court would have found alarming.
In sum, drone technology makes the unique perspectives and skills of the legal profession all the more valuable. As drone use becomes more common and employed for both constructive and destructive purposes, legal concerns grow exponentially. Trends point to personal drone sales increasing with the added lure of enhanced video capabilities, faster speeds, lighter weights, and longer battery life. As drone purchases increase among consumers and drone use becomes more prolific in humanitarian rescue efforts, investigative news reports, sports and entertainment photography, logistical e-commerce deliveries, and partnerships between the private sector and the government, new “Black Swan” legal issues will emerge. First Amendment concerns, privacy violations, threats to civilians, and evolving insurance coverage unique to drone operation are only the tip of the iceberg: legal professionals with deep expertise in drone technology are needed now more than ever.