Privacy & UAS

By John Palatiello

Two issues—privacy and UAS (unmanned aerial systems) —will have a more profound impact on the ability of aerial mapping firms to operate in the U.S. market in the coming months than any technology change experienced in the past 20 years.

While the advent of digital aerial sensors, GPS, IMUs, lidar and other technological advancements have revolutionized aerial mapping in recent years, firms engaged in the aerial mapping profession are now confronting a serious threat and potential opportunity.  And the two are not unrelated.

In March 2012, the Federal Trade Commission (FTC) issued a final report, “Protecting Consumer Privacy in an Era of Rapid Change” providing recommended actions for business and policy makers to protect consumers’ private information. The report seeks to regulate the collection, sharing, or use of “precise geolocation data” about a citizen, requiring the “affirmative express consent” or advance approval of each such citizen.

While FTC had previously indicated that a definition of the term “precise geolocation data” or an exception for the legal, legitimate, and ordinary activities in the professional geospatial practice would be included in the Commission’s final report, no such exemption or clarification was included.  The Coalition of Geospatial Organizations (COGO) has appealed to the Chairman of the FTC for such an exclusion.

“The revisions, additions and clarifications COGO has suggested would provide clarity with respect to parcels and addresses,” said Jeff Lovin (Woolpert, Inc., Dayton, OH), MAPPS Delegate to COGO, who originated the letter. “One footnote in a 122-page report does not go far enough to protect areas of professional services that have not been identified as a problem or pose any privacy concern to citizens.”

Privacy invasion by UAS has also caught the attention of Congress. 

Presently, only government and certain government-sanctioned entities can fly unmanned vehicles in the national airspace of the United States.

That changed on February 14, 2012, when President Obama signed Public Law 112-95, the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012. This new law instructs the FAA to release a proposed rule that will establish policies, procedures, and standards for a wide spectrum of users in the small civil, commercial, unmanned aerial system UAS community. That will include aerial imagery and aerial survey data collection operations.

Speaking at the MAPPS summer conference in Snowmass, CO in July, Randy Willis, acting air traffic manager in the FAA’s UAS Integration Office, said proposed regulations will “enable small UAS to operate safely in limited portions of the NAS and gather data.”  He said rules will enable the widest range of activity that can be safely conducted within the shortest rulemaking timeframe.  A Notice of Proposed Rulemaking will be released later this year.

As government use of UAS transitions from military operations overseas to domestic uses by civil agencies, concerns for the privacy of U.S. citizens have grown.  Several legislative proposals have been introduced in Congress to restrict UAV surveillance by government agencies or contractors.  One such bill, stating, “a person or entity acting under the authority of the United States shall not use a drone to gather evidence or other information pertaining to criminal conduct or conduct in violation of a regulation except to the extent authorized in a warrant” could affect crop monitoring, pollution, and other activities for which conventional aerial photography is now used.  Such manned aerial surveillance and enforcement was upheld as constitutional by the Supreme Court in Dow Chemical Co v United States (476 U.S. 227 (1986)).

In its 1986 decision, the court found, “It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. But the photographs here are not so revealing of intimate details as to raise constitutional concerns. Although they undoubtedly give EPA more detailed information than naked-eye views, they remain limited to an outline of the facility’s buildings and equipment. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems.”

Since that time, commercial remote sensing satellites have entered the market and such imagery is “generally available to the public.”  Absent new legislation, the availability of imagery from a UAS and its use by a government agency or its private contractor (as was the case in Dow), may ultimately be settled in court.

John Palatiello is executive director of MAPPS.

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