Constitution Daily

Smart conversation from the National Constitution Center

Should states determine if drones can record your conversations?

September 19, 2013 by Margot E. Kaminski


Privacy and free speech have a complicated relationship. Privacy can be necessary for speech, or in direct tension with it. Tensions arise, for example, when one person records something another person wants to keep private.

Private drones. Source: Creative Commons
Private drones. Source: Creative Commons.

Drones, which people already use as platforms for recording technologies, embody this tension between privacy and free speech. Drones can be used to stalk people, or to record matters of public interest from new vantage points. We should allow states to experiment with a variety of drone privacy laws, in order to allow courts to experiment with striking the right balance between privacy and speech.

Laws regulating the use of drones as platforms for recording technologies—as distinct from laws requiring the safe operation of drones—may encounter First Amendment challenges. Courts have recently found that the First Amendment protects a “right to record.”

Several states have wiretap laws that require a person to get permission from all parties in a conversation before recording it. These wiretap laws have been used by police to arrest people who record police activity in public using cellular phones. But several courts have found that such recordings are protected by the First Amendment, recognizing a First Amendment “right to record.”

The “right to record” is not firmly established; nor is it clear how broad this right might be. So far, the “right to record” has been used by courts to protect people who record public officials acting in public, as a matter of public interest.

It is not clear if the “right to record” can be used to successfully challenge privacy laws that protect private spaces, or private citizens. But several older cases suggest that a person appearing in a public space cannot prevent another person from taking a photograph of them.

The “right to record” might be as narrow as a right to record police activity, or as broad as protecting the recording of all activities done in public.

States have started regulating drone use through new drone privacy laws, expressing wariness about drone surveillance capabilities. State laws that govern the use of drones by law enforcement do not raise First Amendment concerns. Drone laws governing photography and videography done by private citizens, however, may end up impinging on the developing “right to record.”

Drone privacy laws may to some extent be warranted. Drones and the technology they carry can enable new kinds of surveillance, from new perspectives. A Seattle woman recently saw a drone hovering outside her third-story window, giving new meaning to the idea of a Peeping Tom.

But drones also enable new opportunities for public accountability. An amateur drone photographer captured pictures of a meatpacking plant in Dallas emptying pig blood into the Trinity River. The company responsible has since been brought into court.

It is tempting to ban the use of drones to record acts done by private people, or acts that take place on private property. But matters of public interest do take place on private property, as the Trinity River pollution example shows. And matters of public interest can involve private actors.

Drones are new and in some ways exceptional, but they are also part of a longer story of developing technologies and their relationship to fundamental rights.

For both privacy advocates and First Amendment enthusiasts, the greatest mistake we could make would be to rush into regulating drone privacy on a federal level. Privacy advocates may end up pouring resources into a federal drone privacy law that courts end up finding violates the First Amendment.

Until courts have a better sense of the scope of the “right to record,” it may be better to let states experiment with the parameters of drone privacy regulation. Some states could choose to ban surreptitious recording.

Others could consider the nature of the recording technology being used, such as telephoto lenses or heat sensors. Some states could focus on defining the type of private behavior they want to protect from surveillance, including behavior they consider private even when it occurs in public places.

States should be allowed to experiment, and get feedback from courts as to when they get the balance right. Only then should we revisit the idea of a federal drone privacy law, addressing the use of drones by citizens to record other citizens.

This is not to say that the use of drones for spying should go unregulated at a federal level. The use of domestic drones by law enforcement, for example, raises important privacy concerns that the federal government should address. And the safety implications of drone flight are already being considered by the Federal Aviation Administration.

But with respect to the use of drones by private individuals to carry recording technologies, the federal government should leave room for state experimentation with privacy laws.

Drones enable researchers to monitor sea ice, to photograph seals, and to reintroduce pygmy rabbits into the wild. Drone journalism is a fast-developing field. Drones may embody our greatest privacy fears, but they also embody an opportunity to bring First Amendment protection to great heights.

Margot E. Kaminski is executive director of the Information Society Project at Yale Law School. She is a graduate of Harvard University and Yale Law School and a former fellow of the Information Society Project.

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