Sunday, June 15, 2014

Drones, Technology Advances Raise Tricky Privacy Questions

Imagine sitting on a public beach, or walking down a busy street, when a drone zooms overhead, capturing an image of the space below and all the people in it, including you.

Unnerving? Sure. Illegal? That's a more complicated question.

Last month, Westbrook resident Andrea Mars called police on a 17-year-old flying a drone over the beach at Hammonasset Beach State Park, saying he was taking pictures of people on the beach.

According to the Department of Energy and Environmental Protection, the teen wasn't breaking any laws, but the incident raised the question: What expectation of privacy does a person have in a public place?

The right to personal privacy is both profoundly valued and highly debated in the U.S., but the advancement of technology has blurred the line between what is public and what is private, from cellphone records to emails and information posted to social media. In Connecticut and around the country, drone technology is quickly becoming the next arena for that debate.

"These are new issues," said David McGuire, a staff attorney for the American Civil Liberties Union in Connecticut. "These are things that would never have been thought of 10 years ago."

While there aren't yet any laws that specifically mention drones, there are laws in place that would apply to criminal misuse of the technology, McGuire said. A person is not protected from having his or her picture taken in a public place, but if the picture-taker crossed the line into stalking or voyeurism, he or she would be subject to the same laws as someone caught peeking through a window.

The same governing principals have guided photographers and photojournalists for years. The American Society of Media Photographers points out that photographing strangers in a public place is perfectly legal, until the photographer becomes a harasser or nuisance to the public.

But expectation of privacy is a moving target, and as technology changes, so must the law, McGuire said.

"Unlike other Constitutional rights, the right to privacy is based on a person's reasonable expectation," he said.

A decision handed down this past week by the 11th U.S. Circuit Court of Appeals regarding the use of cellphone records by police is the first to indicate that a person can have a reasonable expectation of privacy in a public location, McGuire said. The court ruled that a subscriber's location, shown on cellphone records, falls within that person's reasonable expectation of privacy and that obtaining those records without a warrant is a Fourth Amendment violation.

Drone videos taken in public places could become a similar violation if used to track a person's location without probable cause, McGuire said.

"Obviously you know that when you're in public, people can see you, but you don't know that you're going to be tracked," he said.

A bill proposed in the state legislature last session to regulate the use of drones below 400 feet —the Federal Aviation Administration governs any use above that altitude — would have created enhanced penalties for people found guilty of using drones for criminal purposes, McGuire said. The bill also would have regulated the use of drones in law enforcement, requiring police to obtain a warrant for video or pictures obtained by one.

The bill didn't pass before the session ended, but the state Office of Program Review and Investigations has been authorized to conduct a non-partisan study on drone regulation, he said.

"We're at the tip of the iceberg," said Alfred Gates, an engineering professor at Central Connecticut State University who is a licensed helicopter pilot, flight instructor, and longtime remote-controlled aircraft hobbyist and drone builder.

The technology will have a huge impact on day-to-day life, the same way the personal computer and the cellphone did, Gates said, but with drones "the changes are going to happen a lot faster."

"There is a concern with any rapidly expanding technology that there are going to be abuses," said Dan Gettinger, co-director of the Center for the Study of the Drone at Bard College in Annandale-on-Hudson, N.Y. "I'm sure people felt the same way when the camera was being mass produced."

Matthew Schroyer, founder and president of, said there is a fear of drone technology in the general public that likely stems from misinformation about the capabilities of recreational camera drones.

"Thinking it can do things like hover outside your house and peek inside" or fly over a beach taking high-resolution pictures of sun-bathers with a telephoto lens, "that's just not the case," Schroyer said. "It's really not feasible to do that kind of snooping."

Most recreational drones have average "point-and-shoot" style cameras, Schroyer said. Being closer to the ground than other aircraft, 400 feet and under, means that drones can take better resolution images than, say, a camera on a plane or a Google Earth satellite, but the pictures are far from close-ups, he said.

At 400 feet, "you are pretty much the size of an ant," Schroyer said.

The video that Austin Haughwout was taking at Hammonasset was shot with a GoPro camera mounted on a radio-controlled quad copter. Because of the altitude at which the craft was flying, any people captured on video were too small to see clearly, Haughwout told The Courant.

"That's a really classic example of a clash of perceptions" between the public's perception of the technology and that of the rapidly expanding population of hobbyists, Gettinger said.

While there is certainly a market for drones with higher-resolution capabilities, Schroyer said, for the general public, that sort of technology is "kind of far off on the horizon."

But even current drone technology has "tremendous capabilities," McGuire said. It can be incredibly small, very quiet and can stay in the air for hours, he said.

"These all together create a real challenge for privacy in public spaces," McGuire said. While the ACLU is primarily concerned with protecting citizens from government surveillance that violates the Constitution, it would be prudent for legislatures to consider regulations for private and commercial drone use as well, he said.

"It really is evolving and the technology far outpaces the law," he said.

Mears, 23, was charged with third-degree assault and breach of peace after she allegedly attacked Haughwout during the confrontation at Hammonasset last month, according to a police report. A video purportedly showing the assault was posted to YouTube and LiveLeak last weekend, whipping both proponents and opponents of drones into a frenzy.

The video, which Haughwout said he took with his phone, shows a woman pulling on the neck of his shirt and clawing at his face while swearing at him and calling him a "little pervert."

"Well maybe you shouldn't be taking pictures of people on the beach," the woman says.

DEEP spokesman Dwayne Gardner said that while remote-controlled aircraft are not allowed at Hammonasset, taking pictures of people on a public beach isn't illegal.

"There's really nothing you can do about it," Gardner said.

There are three areas within Connecticut state parks where remote-controlled aircraft are permitted to fly, Gardner said, and had the situation at Hammonasset gone differently, environmental conservation police would have responded and asked the young man to leave and take his drone to one of those locations.

Gardner said he doesn't know of any other incidents where photography on the beach has been an issue, with or without drones. Since there aren't yet any laws governing the low-altitude flight of drones, or any remote-controlled aircraft, flying one in a state park area deemed "off-limits" isn't an arrestable offense.

Normally, offenders are just told to stop, Gardner said.

"As these [drones] become more prevalent," he said, "we're going to have to see what happens."


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