Guest Host: Steve Roberts

Drones are now used across the U.S. to monitor crops, inspect power lines, and shoot commercials. But the near-collision of a drone and a commercial jet last week is highlighting the need for new rules for unmanned aircraft. A conversation about the regulation of domestic drones to protect privacy and public safety.

Guests

  • Marc Rotenberg executive director of the Electronic Privacy Information Center. He teaches Information Privacy Law at Georgetown University Law Center.
  • Rebecca MacPherson transportation attorney, Jones Day in Washington, D.C. and former assistant chief counsel for international law, legislation, and regulation at the Federal Aviation Administration (2004-2013)
  • Alan Levin reporter, Bloomberg News.
  • Michael Toscano president and CEO, the Association for Unmanned Vehicle Systems International.

Transcript

  • 10:06:54

    MR. STEVE ROBERTSThanks for joining us. I'm Steve Roberts of George Washington University sitting in today for Diane Rehm. She's out with a cold. Small unmanned drones are used in a host of commercial pursuits across the U.S. to monitor crops, inspect power lines, shoot commercials, but under current FAA rules, use of commercial drones is illegal.

  • 10:07:14

    MR. STEVE ROBERTSJoining me here to talk about the regulation of civilian drones is: Alan Levin of Bloomberg News, has been covering the subject, former FAA counsel Rebecca MacPherson who's now at the law firm of Jones Day, and Marc Rotenberg of the Georgetown University, and, by phone from Orlando, Fla., Michael Toscano of the Association for Unmanned Vehicle Systems International.

  • 10:07:38

    MR. STEVE ROBERTSWe invited a representative from the FAA to join us this morning, but none was made available. But for those of you who are here, welcome. Delighted to have you with us. And you, our audience, of course, as always, we want you to join this conversation, 1-800-433-8850. The email is drshow@wamu.org and our website, of course, www.drshow.org.

  • 10:08:04

    MR. STEVE ROBERTSAlan Levin, you've been writing a lot about this subject. And there's some misinformation. We're not talking about military drones, which of course have been in the news a lot in Afghanistan and other places. Tell our audience what we are talking about. What are these civilian aircraft?

  • 10:08:20

    MR. ALAN LEVINWell, you're right. It's not the Predator drones that we hear about in Yemen, for example. These are an amazing array of different types of aircraft ranging from little toys you can buy for less than $100 up to multi-thousand dollar very sophisticated models. They range in, you know, weight and all up to maybe 50, 100 pounds for some of the more sophisticated. But the huge growth right now are in these small helicopters.

  • 10:09:02

    MR. ALAN LEVINThey typically have more than one rotor blade. They've got little computers in them to make them stable because they're inherently unstable without the computers. They run on a little radio controller, and you can buy them online or in hobby stores for several hundred dollars, put a camera on them, and you're good to go in an afternoon.

  • 10:09:22

    ROBERTSNow, as I mentioned in the introduction, one of the reasons why there's a renewed focus on this issue was the near-miss in Florida. A commercial aircraft reported possibility of a collision with a drone. And there are more and more of these incidents. What happened? And has this raised concerns about safety?

  • 10:09:42

    LEVINSo -- well, what happened is a US Airways regional jet was flying into Tallahassee in March, and the pilot reported sighting what he believed to be a model fighter jet. These -- we don't know for sure what it is. He thought it was camouflage -- painted in camouflage. And the model community builds these very sophisticated jet aircraft. They weigh anywhere from 20 to 50 pounds. They fly very fast, and they have little jet turbine engines in them. And they can go much higher and faster than typical models. But we don't have confirmation that's what it was, but that's what the pilot reported.

  • 10:10:28

    ROBERTSNow, Michael Toscano, one of the things -- we want to bring you in here by phone from Florida. One of the things that struck me in reading about this subject is how diverse the uses are. Give our listeners a sense of the range of -- the growing range of purposes that these models are being put to.

  • 10:10:51

    MR. MICHAEL TOSCANOWell, Steve, when you talk about an unmanned aircraft system, there's a wide range of sizes and altitudes that they would fly in, so predominantly the small ones that we're talking are 55 pounds and less. And if you look at the dirty, dangerous, difficult, and dull jobs that human beings are exposed to, this technology does two things very well. It's good as a delivery system, and it's good at situational awareness.

  • 10:11:15

    MR. MICHAEL TOSCANOSo a farmer knows how to farm better than anyone else. What the farmer, what he or she needs is good information to make smart decisions on whether they need to put phosphate, nitrate, potassium in their soil to make it grow what they want to grow, and to understand where the insects or the areas that they need to treat differently. So farming is going to be the biggest industry that is going to be the first to, I think, utilize this technology.

  • 10:11:39

    MR. MICHAEL TOSCANOBut the list is endless, whether it be in the film industry, whether it be monitoring a pipeline, understanding better of the weather conditions, understanding nature, understanding the protection of wildlife, like rhinos and elephants or endangered species, the migration paths, following icebergs. I mean, there are so many things that you could do with this technology that human beings do today. So it's just an extension of the eyes and the ears of a human being, in some cases the hands when you talk about ground ones as well, to do those very difficult missions.

  • 10:12:10

    ROBERTSOne of the areas that I noticed, particularly the University of Nebraska now has a center on this subject, and that is the use in journalism as one more source of data. Talk about that.

  • 10:12:21

    TOSCANOWell, again, what a journalist needs is good information in a timely manner. And being that that's the profession that you're in and others have been involved with is trying to get it right from the very beginning requires you having eyes or ears at the time of incident to make sure that you get the facts and figures right. And this is what this technology allows you to do in a much more effective, efficient, and safe manner.

  • 10:12:48

    ROBERTSAnd, Rebecca MacPherson, you were an attorney at the FAA, now in private practice. The legal situation is very murky here and very muddled as The Wall Street Journal described it. I said in the intro that most of these commercial applications are currently illegal. But clarify the legal situation for us.

  • 10:13:09

    MS. REBECCA MACPHERSONSo the legal situation currently -- unsettled is an excellent word for it. In 2007, the FAA issued a policy statement that said, we know these are out there. We know that people are using them. We know that they look a lot like model aircraft. And if they were model aircraft, you could operate those under an advisory circular which has certain standards that you follow. But if you use them for a business purpose...

  • 10:13:42

    ROBERTSAs opposed to a hobby.

  • 10:13:43

    MACPHERSON...as opposed to a hobby, then they are subject to the full range of existing FAA regulations. And of course the FAA regulations really are not designed for particularly the small UASes. And so meeting those requirements really can be quite burdensome. You have to get an experimental airworthiness certificate. The criteria for getting one of those certificates makes no distinction on the size of the UAS. So a UAS that's the size of your palm...

  • 10:14:18

    ROBERTSUAS, unmanned...

  • 10:14:19

    MACPHERSONAnd that's an unmanned aerial system.

  • 10:14:20

    ROBERTSSo it's -- OK.

  • 10:14:20

    MACPHERSONThat's the FAA's official term. Drones is what most people really sort of use. But the requirements for getting a airworthiness certificate are the same for a drone that's the size of your fist and one that's the size of your bedroom. And there's no distinction in terms of the steps that the FAA makes you jump through.

  • 10:14:44

    ROBERTSAnd I gather, from reading about this, that users are basically flaunting the FAA, that -- I read one story where a guy said, if I got a cease and desist letter, I'd frame it on my wall and tell the FAA to blank off. So whatever rules are out there don't seem to be having much effect at all.

  • 10:15:01

    MACPHERSONWell, that's right. And, in fact, the FAA has taken very little enforcement action for the use of these drones when they don't meet FAA requirements. And where you have seen enforcement action, it's generally been if the FAA has determined that the use of that drone creates a risk to the safety of the people on the ground and its sort of desire to look at airspace risk, risk to third parties. That has been stronger.

  • 10:15:30

    ROBERTSAs the Tallahassee situation that Alan was describing.

  • 10:15:33

    MACPHERSONExactly. Exactly.

  • 10:15:36

    ROBERTSNow, Marc, another area, in addition to safety, public safety that Rebecca's talking about, the area that concerns you is privacy, this image of a drone hovering outside someone's bedroom. Talk about the privacy concerns that you have.

  • 10:15:51

    MR. MARC ROTENBERGWell, Steve, I think it's actually a concern that many people have.

  • 10:15:54

    ROBERTSMm hmm.

  • 10:15:54

    ROTENBERGAnd I think the simple way to understand this is, if we talk about a person who uses a drone over their own property, I don't think anyone's going to object. So in Mike's example, if a farmer's using drones to check out his crops and save some money and get a better sense of conditions he's dealing with, I don't imagine anyone would say privacy violation. Same thing if we take a drone and put it up in our backyard and hover over our own home. The privacy issues arise because many of the drone applications involve surveillance of others, going onto other people's property...

  • 10:16:26

    ROBERTSMm hmm.

  • 10:16:28

    ROTENBERG...or by the police, for example, observing people in public spaces that may be involved in political protest. And I think these issues are very real. Now, with respect to the press groups, I think they recognize a value in the use of drones for news gathering, which is important and I think needs to be part of the policy debate. But I think there need to be some limits, particularly when there is entry onto private property, even for news purposes, by a drone.

  • 10:16:56

    ROBERTSAnd what about the -- what is the status of rules of evidence in terms of warrants? I mean, this raises a whole series of questions about evidence, admitting to (unintelligible)...

  • 10:17:08

    ROTENBERGThat's -- that is a very big issue. It's one of the themes that runs through the cases that are now going to the Supreme Court, including this term the cellphone search case. And the question is, under what circumstances, using these new investigative techniques, should the police be required to obtain a warrant?

  • 10:17:25

    ROTENBERGOur view is that the police could be able to use drones for investigations, but we think they should have a warrant first that provides some specificity, that explains the actual investigation underway, and who the target is. Otherwise, we do open the door to a type of mass surveillance because then you put drones up, and you're looking at everybody.

  • 10:17:45

    ROBERTSAnd is this a good example of how the law, having to adapt to technology -- I mean, the case law about warrants involves entry into private property through doors and those sorts of questions. And when you have a drone hovering outside someone's window, it sort of changes the whole context in which surveillance...

  • 10:18:04

    ROTENBERGAlthough sometimes I think it's more about the technology adapting to the law. In other words, if we have a principle in this country that says the police investigations are supposed to be focused, they're supposed to be done pursuant to judicial authority, then it really doesn't matter what type of technology you're using. If you're going to use one of these investigative techniques, you need to follow the rules. Now, of course, the Supreme Court has to actually say that. And so we're waiting right now for the court to take one of these cases and make a determination.

  • 10:18:32

    ROBERTSThat's Marc Rotenberg of Georgetown University. Also with me, Michael Toscano, Rebecca MacPherson, Alan Levin of Bloomberg News. We have some lines open, so give us a call. Let us know what you think about this whole subject, this fascinating and emerging subject of unmanned aircraft in our airspaces. I'm Steve Roberts sitting in for Diane. We'll be right back.

  • 10:20:01

    ROBERTSWelcome back. I'm Steve Roberts sitting in today for Diane. And our subject this hour, unmanned aerial systems -- is that -- UAS, but better known as drones, an increasing issue, and increasingly questions of privacy, questions of safety, questions of commercial applicability. Alan Levin who covers this subject for Bloomberg News is with us, former FAA counsel Rebecca MacPherson, Marc Rotenberg who teaches privacy law at Georgetown University. And on the phone from Orlando, Fla., Michael Toscano of the Association of Unmanned Vehicle Systems International, trade association for this subject.

  • 10:20:41

    ROBERTSAnd you can join us as always, 1-800-433-8850, email drshow@wamu.org. We're on Twitter and Facebook as well. Alan Levin from Bloomberg, as Marc was talking about, as so often in these issues, you've got a clash of sort of two virtues here, two values. In the area of journalism, as it was described earlier, this could be a terrific tool for increasing information. But it clashes up against privacy questions. Bring us up to date on that part of the debate.

  • 10:21:18

    LEVINWell, there's definitely been a big interest on the part of the news media to use these. We just had a story this week on the growth and lobbying on this issue, and the National Association of Broadcasters last year started lobbying on this because their members want to be able to use these for sporting events, for news, traffic, all that sort of thing.

  • 10:21:39

    ROBERTSWeather, you can see where it'd be an enormous use in weather reporting.

  • 10:21:42

    LEVINSure, sure. And also last week, a group of many media companies, including Associated Press and The New York Times, filed a legal brief saying essentially that the government had no authority to regulate these things in a case of the first person who was ever fined for using this. It turns out, by the way, that a judge actually sided with this guy and said throughout the fine -- now it's under appeal -- and FAA still maintains they have the authority to regulate this.

  • 10:22:21

    LEVINNow, I would say on the other side -- since FAA's not here, I feel compelled to give their position. Their view is this has absolutely nothing to do with the First Amendment, that federal -- you know, that you can use a manned aircraft to take pictures and that this is neutral on the subject of using an unmanned aircraft to take pictures. Their concern is crafting regulations that are safe for people on the ground and that protect the aircraft that are operating currently in the airspace.

  • 10:22:52

    ROBERTSRebecca, you were an attorney at the FAA. What was the judge's reasoning in this case? Why did he side with the -- the guy was not a journalist who...

  • 10:23:03

    MACPHERSONHe was not. He was taking photographs of the University of Virginia, similar to what...

  • 10:23:09

    ROBERTSSo for publicity.

  • 10:23:09

    MACPHERSON...you know, you would do for real estate or something like that.

  • 10:23:13

    ROBERTSMm.

  • 10:23:14

    MACPHERSONSo the FAA charged him under a provision of their regulations that says you cannot operate aircraft recklessly or in a negligent manner. And in charging him, they cited sort of several activities that the drone took. It was flying under pedestrian tunnels. It was flying near a statue. It was flying within proximity to people.

  • 10:23:43

    MACPHERSONTheir complaint alleged that one person had to sort of duck for cover because the drone was so close. Interestingly enough, they did not charge him with a violation of any other of the regulations. And, in fact, all the regulations that were adopted as being applicable under the 2007 policy statement, it said no, no, no, we're really focused on this risk to public safety.

  • 10:24:08

    ROBERTSAnd the judge sided with...

  • 10:24:10

    MACPHERSONThe judge did because the regulations specifically references aircraft. And the judge, who is an administrative law judge, said, yes, but it's not aircraft. It's a model aircraft. And you, the FAA, have decided you're not going to regulate model aircraft.

  • 10:24:24

    ROBERTSSo that was the dispositive point in his opinion.

  • 10:24:25

    MACPHERSONThat was his dispositive point.

  • 10:24:28

    ROBERTSMarc, what's your view of this emerging legal situation?

  • 10:24:32

    ROTENBERGWell, I think Alan made an important point at the outset about the FAA determination. It wasn't based on the content of the communication. It wasn't based on who the person was which are traditional First Amendment concerns. It was actually a public safety regulation.

  • 10:24:46

    ROTENBERGSo while I'm entirely sympathetic to the First Amendment arguments -- and we often find ourselves defending First Amendment claims -- to me this case is a little bit like a journalist challenging the government's authority to regulate auto safety because of the claim that somehow the regulation of auto safety is going to impede their ability to get to the location of a news story. And that just -- that can't be right when we're in the realm of public safety.

  • 10:25:09

    ROBERTSMm hmm. And one of the -- there are many moving parts here because this is such, as we said, unsettled and muddled. You have also the FAA itself, Alan, currently reviewing its regulations talk that they might come out with at least tentative rules by the end of this year. But in reading the statements of Commissioner Huerta and others, they seem to be moving very, very slowly on this very deliberately.

  • 10:25:39

    LEVINThey're literally years behind where they said they would be. Back in, what is it, 2008 I believe -- Michael may know the exact date -- the group from industry got together and created a sort of framework for a rule that would allow very -- you know, small drones, 55 pounds and under, to operate in limited circumstances, you know, in line of sight of the operator during the daylight and at low altitudes and away from people.

  • 10:26:09

    LEVINBut this issue has proven to be a lot more controversial than, I think, they figured. The -- you have very active trade groups like AVSI that are pushing this. But on the other side, you have pilots and other interests that are very cautious about the safety issues here. And so I think FAA's perhaps caught in the middle a little bit and hasn't been able to sort of find that fine point.

  • 10:26:37

    ROBERTSMichael, let me bring you in since Alan mentioned your group.

  • 10:26:41

    TOSCANOSure.

  • 10:26:41

    ROBERTSWhat's your position on this evolving rule-making procedure by the...

  • 10:26:46

    TOSCANOWell, Steve, let me just talk about a couple things. First of all, it was 2009 that Alan was referring to. But, you know, going back to the supposed incident in Tallahassee, again, there is no formal report that has been filed. The pilot believes he saw something, or there was some sort of an incident that took place. We still don't have all the facts and figures.

  • 10:27:09

    TOSCANOBut regardless of what it was, whoever was operating, if there was a system that was -- you know, whatever it was, the person was doing it illegally. You can't fly within five miles of an airport. And you're not supposed to fly in the proximity. So whoever was doing that, if they were doing it as a hobbyist, they were breaking the rules. If they were doing it, you know, for whatever reason, they were flying in a dangerous situation. And it's all about safety when you're talking about unmanned systems.

  • 10:27:36

    TOSCANOSo you talk about the rule and where the FAA is, I've already started to see a changing because the technology has obviously outpaced the regulatory aspects. But there is some low-hanging fruit or applications because it is all about safety, and there's a concern with privacy. But if you look at farming, like Marc mentioned, if you're in the middle of a corn field, you know, corn doesn't mind if you watch it, so there's no privacy issue concerned as far as that goes. And from a safety standpoint, the farmer knows basically where the people are or who's going to be in the proximity.

  • 10:28:06

    TOSCANOSo it's all about determining what is the risk assessment or safety aspect. And that's why the movie industry, power lines, pipe line inspections, bridge inspections, things of this nature that we feel that we could -- the technology's available to be used today 'cause no one questions whether you can fly, drive or navigate. They question, how safely can you do it?

  • 10:28:26

    ROBERTSIt sounds to me like a big part of your role here is to say, look, we share the concerns about safety, and we share concerns about privacy. But at the same time, understand that, if used correctly, these devices can have very beneficial effects both for journalism but also for many commercial applications. That seems to be what you're trying to establish as a point of view.

  • 10:28:50

    TOSCANOSteve, there is a tremendous economic benefit, job creation, and an efficiency and effectiveness and the saving of lives that this technology brings to bear. And as Congressman LoBiondo said, you'd have to be in a cave not to realize the potential of this technology. But it has to be done in a safe way, and it has to be done to meet -- make sure that we don't violate other rights.

  • 10:29:11

    TOSCANOSo going back to what Marc was indicating earlier -- and Marc and I have had these conversations before -- is the way that we look at it from an industry is that anything that flies in the national airspace has to follow the rules. And so if the manned helicopter or an unmanned system, they have to follow the same rules of safety and also from observation of the First Amendment to all the different laws that exist today. So this is a revolutionary technology on an evolutionary path.

  • 10:29:39

    ROBERTSBut...

  • 10:29:39

    TOSCANOIt's no different than we had with cellphones, computers, all the things that we have to adapt the regulatory aspects to fit the technology. You know, we're writing bullying laws 'cause people are misusing the Internet after 40 years of using the Internet. So we have to utilize the technology to understand what the court cases are going to be and to find out where we're going to draw these lines because it is very gray at times of what is OK and what needs to be dealt with in a much more conservative way.

  • 10:30:08

    ROBERTSBut obviously one of the moving parts here, Marc Rotenberg, is that the law and the regulations -- it's one thing to say live by the regulations, but in fact the regulations are evolving at the same time. And, as Alan said, there are major economic and professional interests at stake here and a lot of lobbying that's going into the rule-making procedure. So that's part of the evolving picture.

  • 10:30:34

    ROTENBERGAll right. Well, I think there are a bunch of things we need to sort out here. I mean, first of all, look, the technology is cool. We get it. I mean, I don't think people are against the use of drones in a whole bunch of ways that are obviously providing benefits. But there are also real risks. There are safety risks, and there are privacy risks. So the question ultimately becomes, how do we take advantage of the benefits of the new technology and try to minimize the risks?

  • 10:30:57

    ROTENBERGNow that's where the FAA comes in because they do have a regulatory framework. They've dealt with commercial aircraft for many, many years. And they're trying to figure out, you know, how are we going to allow the more widespread use of drones in the United States and still protect safety and privacy? I think that's a very important process to go through. And it may be a little frustrating for Mike and some of his groups, but it's necessary.

  • 10:31:19

    ROBERTSAnd, Rebecca, are you seeing a lot of lobbying, a lot of interests being focused on this -- you've got the rule-making procedure.

  • 10:31:27

    MACPHERSONRight.

  • 10:31:28

    ROBERTSYou've got court cases, you've got state legislators also getting into this, a lot of venues in which these interests are coming together.

  • 10:31:35

    MACPHERSONSo there's a tremendous amount of pressure on the FAA to go ahead and get this proposed rule out. And they've committed to doing it by the end of the year. With that said, they're still working on writing it. It has to go through the Department of Transportation and the Office of Management and Budget for a review. Under the schedule they've projected, neither the Department of Transportation nor OMB would be able to take more than their allotted time to review it. That, in fact, almost never happens.

  • 10:32:05

    MACPHERSONSo I think it's really unlikely unless they submit something that is really stripped down that really just addresses critical safety issues. But there are technological issues that the FAA's very concerned about. And one of those is they have a very real concern that you could lose contact between the operator and the drone. And then the drone is out of control. And nobody knows where it is, and nobody's able to handle it. So they had some legitimate concerns. But with that said, they're under a tremendous amount of pressure to get this out.

  • 10:32:40

    ROBERTSI'm Steve Roberts, and you're listening to "The Diane Rehm Show." Let me read a couple emails because we've got a lot of folks who want to join the conversation. This comes from Bill in Winchester, Va.: "My biggest concern is that eventually the NRA and its militias will claim a Second Amendment right to possess armed drones." Real issue, not, anybody?

  • 10:32:59

    LEVINI think it's more likely that people will start shooting down drones, but it doesn't seem likely that individuals will use drones in a weaponized way. The government might. The government does.

  • 10:33:11

    TOSCANOThe FAA restricts any aircraft, manned or unmanned, to dislodge a weapon. So it's illegal to weaponize -- other than law enforcement has a provision for that. But no commercial application can use -- or weaponize. And that's what people got to understand. When you look at the industry that is trying to -- or the industries that are trying to form, they want to be regulated. And that's very rare that you'll find industries that want to be -- they want to know, what are the rules that they can fly these systems to be safe and to abide by all the amendments and from a privacy standpoint as well?

  • 10:33:49

    TOSCANOAnd as Marc was alluding to, that's where we have to come to an understanding, to what is going to allow for the emerging of this technology to be used to gain all the economic benefits, the job creations, the efficiencies, the effectiveness, the life savingness. You know, when you listen to any disaster, whether it's Fukushima...

  • 10:34:08

    ROBERTSRight.

  • 10:34:08

    TOSCANO...or a Katrina or whatnot, there is tremendous reasons why people need to use this technology.

  • 10:34:13

    ROBERTSLet me read this email, Alan, from Lara in Ohio. "Frankly, I don't like the thought of drones for civilian use," she writes. "Are we going to have to register a no-fly zone over our own homes? I think this could really pose a problem for our privacy as well as potential for misuse by a host of ill-intentioned persons."

  • 10:34:32

    LEVINWhat we've talked already about how this new technology is sort of straining our legal system. And this is another area that there is a case law about whether a property owner has the right to prevent flights over his or her house. But that was with manned aircraft, which generally don't go below 500 feet. Now you have this whole new category of aircraft which can come down to within inches of your roof or your bedroom window, for that matter. And so the -- I think we're going to have a whole new round of court cases to sort of decide what your rights are to prohibit this above your property.

  • 10:35:10

    ROBERTSAre there cases, Marc, like this making their way through the system already?

  • 10:35:13

    ROTENBERGNot yet. We're seeing in the lower courts some Fourth Amendment issues that are similar regarding aerial surveillance, but we haven't seen yet good drone cases. I want to add though, Rebecca just gave me an idea -- and I don't know if it's too late to get this into the rule-making.

  • 10:35:27

    ROTENBERGBut in light of our experience, you know, with flight 370 going down and everyone losing track of it, and that experience being so very frustrating, and people in the U.S. concerned about, you know, where drones end up, if I had the ability as the rule-making authority, I would say that any commercial drone should be required to transmit GPS location data so that its position could always be identified.

  • 10:35:53

    ROTENBERGAnd that information should be widely available to anyone who wants to see it. And I think it would have a very profound effect on some of these issues, such as the privacy concerns, if those who were using drones were obligated to make their presence widely known.

  • 10:36:08

    ROBERTSWhat do you think of that Rebecca?

  • 10:36:09

    MACPHERSONWell, I think the question -- I'm not sure that makes sense for small UAS. Transponders are expensive, and a transponder that constantly tracks GPS and is tracked by air traffic presumably...

  • 10:36:22

    ROBERTSBut they're getting cheaper and cheaper. Everybody's got them on their phones now.

  • 10:36:24

    MACPHERSONThey are getting cheaper and cheaper, and I think at a level at which larger drones are regulated -- and I really think that the FAA probably needs to back off in some respects from the small UAS world and make it really fairly easy to get so they can focus on the real issue, which is the larger drones. For those, I can totally see why a transponder would make a lot of sense. It's much more of a safety issue. Truthfully, small drones do not raise big safety issues. They're too small.

  • 10:36:53

    ROBERTSMichael, let me...

  • 10:36:53

    TOSCANOLet me jump in here on this one. You know, first of all, we've advocated from -- you know, when you talked 400 feet and below, daylight only, 55 pounds or less, we do believe that there's some tenets that the industry has to follow. One, they have to make sure that the operator is properly trained. So we've got to have standards for training people. Two, you got to make sure that the platform is airworthy and it can fly to do the mission that you want it to do.

  • 10:37:15

    TOSCANOThree, you've got to do a safety assessment to determine that you're not going to hurt anybody, and also you're going to have privacy in there, that you're not going to violate any privacy rights. The fourth thing is we do believe that these should have any commercial application for a UAS needs to have an identification, whether it's (unintelligible)...

  • 10:37:29

    ROBERTSThat's going to have to be the -- I've got to take a break here, Michael. We're going to be back with your calls, your comments on the issue of civilian drones, so stay with us.

  • 10:40:00

    ROBERTSWelcome back. I'm Steve Roberts sitting in today for Diane. Our subject this hour, civilian drones, the roles they're playing in agriculture and journalism, as well as some of the safety and privacy issues that have now -- evolving here in Washington. And I've got a number of experts with me to talk about it: Alan Levin, who covers this subject for Bloomberg News, Rebecca MacPherson, now in private practice at the law firm of Jones Day, formally an attorney at the FAA, Marc Rotenberg, who teaches this subject at Georgetown University Law, and, by phone from Florida, Michael Toscano.

  • 10:40:32

    ROBERTSHe represents the Association for Unmanned Vehicle Systems International. We have a lot of emails on the subject of are individuals -- have a right to shoot down drones. And let me just read, just one of many, from Barbara Barkley who writes to us: "I predict it won't be long before somebody feeling violated, trespassed upon, stalked, et cetera, shoots one of these things down. Let's hope someone at the regulatory level wakes up." Rebecca?

  • 10:41:03

    MACPHERSONWell, so I think we need to be clear about what we're talking about here. These are unmanned vehicles that are really quite small. So given that the act of shooting something down from the sky that's about the size of a bird is unlikely to really present any sort of new risk to public safety, I can't see the FAA getting terribly concerned about that.

  • 10:41:29

    MACPHERSONAnd I think it's really an issue that the courts would need to decide. I mean, if you shoot it down and it's worth a lot of money, then you could, you know, shouldn't be surprised if somebody sues you for shooting it down. And you can fight it out in the courts. I will say, though…

  • 10:41:42

    ROBERTSBut there's no case law here that really gives us a sense…

  • 10:41:44

    MACPHERSONThere's not really any case law. Now, I will say that in general the FAA would take a very dim view of shooting down aircraft. And in a corollary, the Justice Department has been very, very aggressive about prosecuting people shining lasers up at aircraft because they do create a public safety issue. And I think that is telling the degree of seriousness that the federal government takes with that. But I don't think that's an issue here (unintelligible) people.

  • 10:42:10

    ROTENBERGRebecca, just in fairness, I mean, shining the laser up at the aircraft is almost the exact opposite of what I think people are reacting to, which is the drone hovering outside their living room window, observing them, and recording them by means of camera, what's happening inside their home. I mean, I might join the NRA over this. That just seems very intrusive.

  • 10:42:30

    ROBERTSLet me…

  • 10:42:31

    MACPHERSONWell, I think you have to be realistic about the extent of that happening.

  • 10:42:33

    TOSCANOIt's breaking the law, whether you do it with a manned system or an unmanned system.

  • 10:42:35

    ROBERTSJust a minute, Michael. Just a minute. We can't talk both at the same time. Go ahead.

  • 10:42:38

    MACPHERSONSo I think, you know, I think this sort of fear that everybody's going to be hovering outside my window is perhaps a little overblown. Creepy people exist. Creepy people use technology today. Creepy people will use this. But there's no reason to assume they are going to use it at a greater level than people do now with the Internet, than they did, you know, 100 years ago with looking in windows.

  • 10:43:03

    ROBERTSOK. Michael, quickly, because I want to get to some other callers.

  • 10:43:07

    TOSCANOI was exactly going to say the same thing. If you're breaking the law, you need to be held accountable, whether you do it with a manned system, unmanned system, a camera or something a mile and a half away that you -- high-powered lens, like what happened with Kate Middleton. You know, this is what we have to understand, that technology will always continue to give us tremendous opportunities. And it can be misused. And if people misuse the technology, they need to be held accountable, and you need to take them to task.

  • 10:43:36

    ROBERTSOK. Let's -- thanks for that. And I want to turn to some of our callers. And Richard, Royal Oak, Mich., you're on "The Diane Rehm Show." Welcome, Richard.

  • 10:43:45

    RICHARDGood morning. And thank you. As the -- I do government video for a nearby municipality. And I've had the opportunity to use one of these small helicopter drones, if you will, to shoot a parade. And I had permission from the parade organizers and from the local police. And I was expecting kind of a negative response from people there at the parade with this thing.

  • 10:44:17

    RICHARDAnd they couldn't have been happier to see it. I have this huge production truck. People would walk by my giant production truck, but they'd see the tiny little helicopter 50 feet in the air. And they'd wave to it. It was extremely well received.

  • 10:44:32

    ROBERTSOK. Thanks for the call. Alan, reaction?

  • 10:44:35

    LEVINOh, I was just going to say, so I hear this all the time. I've been writing about this for months now. People -- this activity is clearly not permitted, at least according to the FAA. But what's interesting is that the -- we don't know exactly what the rules are going to be for small, unmanned vehicles, but I believe it's pretty clear that this activity would not be permitted under what they're imagining because they are going to say, at least initially, that you shouldn't be operating near people.

  • 10:45:07

    LEVINAnd there have been some incidents already in which drones malfunctioned, dove into crowds and hit people. There was a woman who was cut pretty badly at a triathlon in Australia in the past few months. So it -- I don't know. It's going to be an interesting issue to see evolve because I think, as this happens more and more, we're going to see more cases like that.

  • 10:45:28

    ROBERTSLet me turn to Roger in Boston. Welcome, Roger. You're on "The Diane Rehm Show."

  • 10:45:32

    ROGERGood morning. Thanks for taking my call. I hear a lot of conversation from your panel, and I'd like to have -- well, I live in Boston. And you have a certain amount of privacy, but, you know, it's kind of restricted in a condominium. I'm more concerned about the privacy issue with regard to non-commercial applications because I have friends that have gone to a hobby store and purchased one of these things with a high res camera on it. And you can literally buzz somebody's window and look right in.

  • 10:46:01

    ROGERNow, I guess my question is, with regard to regulation, what -- give me a scenario of what kind of regulation will be or what some of the potential regulations to protect against your privacy when it comes to that kind of non-commercial application, that you can, you know, go to your local hobby store and purchase one of these things with a high res, high def camera on it.

  • 10:46:29

    ROBERTSGood question, Roger. Thanks a lot. Marc?

  • 10:46:31

    ROGERThank you.

  • 10:46:31

    ROTENBERGThis is actually -- this is a classic privacy issue, and many states have what are called peeping tom laws. I mean, this goes back actually to the 17th century and Blackstone, the thought that your neighbors should not be looking into your home. In fact, our phrase eavesdropping comes literally from the term hanging down from the eaves and looking into someone's home.

  • 10:46:54

    ROTENBERGSo states understand this. Now, what's interesting is when you introduce new technologies. And so, for example, there are also paparazzi laws which limit the ability to use zoom cameras, for example, directed over someone's home, into their private property.

  • 10:47:11

    ROTENBERGI think these cases will be very interesting. And, again, it's not about saying that drones are good or bad. It's about trying to draw some lines that are sensible. In public spaces, if the safety issues can be addressed, I think drones could clearly aid the media and could be very useful, as your earlier caller described. But with respect to private homes and observing what happens inside the home, then I think the privacy issues are very real.

  • 10:47:36

    ROBERTSI want to turn to Brian in San Antonio. Brian, I gather you want to talk about law enforcement dimension to this.

  • 10:47:43

    BRIANNo. There might have been some confusion on what I wanted to say. It's just very simple, that the privacy in your own home -- obviously no one wants anyone to peep in your home. No one wants their credit card information to be stolen, you know, and so forth, right. But, you know, when it comes to, you know, whether it's the drones or any other kind of technology observing what I'm doing in public, I don't really care if anyone knows that I drove my car 70 miles, you know, on a particular day or that I happened to be at such and such a place in San Antonio.

  • 10:48:18

    BRIANI think that it could help law enforcement, the more cameras we have. You know, the traffic is a problem. If there were literally 500,000 cameras stationed throughout San Antonio, any time there was an aggressive driver incident, they could instantly figure out who it was.

  • 10:48:34

    ROBERTSOK.

  • 10:48:35

    BRIANIs that a privacy issue? You know, so, anyway, I just wanted to say, as far as drones go, I don't really see it being a huge issue. The law is against peeping toms, like your guest had said. Those already exist.

  • 10:48:50

    ROBERTSRight. Thank you, Brian, very much. The law enforcement dimension here, Rebecca. You're a lawyer. Obviously, as we've been saying all morning, there are enormous potential benefits. There are also potential downsides. Respond to Brian's comments.

  • 10:49:07

    MACPHERSONRight. So, actually, this not only raises Constitutional issues, but it's an issue that's been of tremendous interest at the state level by the state legislatures. And there are several state legislatures who have introduced, and many who have actually passed, legislation that would require a warrant for police surveillance, and really for -- many of them are very broad and would even cover sort of things that currently CCTV picks up.

  • 10:49:37

    MACPHERSONYou know, most major cities in the United States have cameras on the streets that are placed there to look for criminal activity that may happen. They don't require warrants. You're out in the public. And if anything, I think what we've seen is state legislatures have taken an even more conservative approach with these than they have with other surveillance technology.

  • 10:49:59

    ROBERTSAll of us in Washington are now increasingly used to the fact that there are cameras everywhere in terms of enforcing traffic laws, just as one small example of what you're talking about.

  • 10:50:11

    MACPHERSONRight.

  • 10:50:11

    ROBERTSLet's turn to Richard in Ft. Meyers, Fla. Richard, welcome. You're on "The Diane Rehm Show." Hello?

  • 10:50:21

    RICHARD…your panel what they believe -- do they believe that this incident where the airliner was just a coincidence or a close call or maybe a trial run? The idea that you could put, you know, a couple of ounces of plastic explosives in one of those, you could bring down an airliner with no problem. I mean, this may be the new guided missile that, you know, if an airliner is traveling at 600 miles an hour and the drone was traveling maybe 200, if it was a jet engine type. That's an 800-mile approach, and you'd never see it coming. You wouldn't even have a chance to avoid it. That's my comment.

  • 10:51:11

    ROBERTSThat's very helpful. We've had several emails on this very subject. "No one has" -- this is an email, also, from Douglas: "No one is talking about terrorists with drones. Won't they be here pretty soon? Why wouldn't they be?" Michael?

  • 10:51:27

    TOSCANOWell, this technology has been around for almost 100 years. And could you do that? And could people misuse the technology? You know, the answer is yes. OK. But, again, this is just a technology and a tool. The thing that actually flies is only 30 percent of the system. It's the mission package payload, it's the communication link, it's the ground station, and it's a human being that involved in this system. So it's no different than any other piece of technology we've seen before.

  • 10:51:53

    TOSCANONow, obviously there's some aspects to it now that we have to deal with. And, again, you have to hold people responsible to act in the proper way when you use any technology. You can't drive a car 150 miles an hour, even though it has the capability of doing that. And if you do, you're going to get thrown in jail for misusing the technology. This is no different.

  • 10:52:12

    ROBERTSThank you very much. I'm Steve Roberts, and you're listening to "The Diane Rehm Show." We've got a number of other emails that I want to read. Here's one from Lisa who says, "It seems quite possible that local police and federal officers could use drones to monitor citizens without a search warrant." Marc, is that an important issue?

  • 10:52:32

    ROTENBERGWell, it's the key issue, actually, at least from the Fourth Amendment perspective because the question is typically, when a search is conducted, are the police required to first obtain a warrant? And the pro-privacy position would say yes. Now, that's not a prohibition on conducting the search. It simply means that the police have to provide some justification to a judge or magistrate prior to the search.

  • 10:52:56

    TOSCANOHey, Steve? If I could…

  • 10:52:57

    ROBERTSYes.

  • 10:52:57

    TOSCANOYou know, when you talk about privacy, you're talking about the collection, the analysis, the storage, the dissemination, the destruction of information or data. That's what's the key issue, that we need to make sure we do that, whether it be for cellphones, whether it be for cameras, whether it be for manned systems or whether it be for unmanned systems. And that is the big issue that we are going to have to deal with and get some resolution for.

  • 10:53:20

    ROBERTSAlso, there's another email from Luke, in Michigan, who says, "'All Things Considered' had a segment yesterday about the police in Florida hovering a craft outside of someone's window for an extended period of time. This is not sci-fi or conjecture. This is happening now." A lot of our emails and our comments are related to this privacy question we've been talking about.

  • 10:53:47

    ROBERTSBut one of the points you're making is that -- Marc -- is that the rules about warrants and admission of these, you have the private issue, but then you have where it gets into law enforcement and how much of this surveillance might be admissible without warrants. And this is still very much an evolving debate.

  • 10:54:03

    ROTENBERGWell, absolutely, Steve. I mean, one of the key concepts we haven't talked about yet is the expectation of privacy. And the courts often look to that issue to try to determine whether the police conduct or even the conduct by a private party is something that's permissible, particularly when we're talking about new technology.

  • 10:54:20

    ROTENBERGSometimes the courts draw lines based on property, which is what I was proposing at the outset because they're bright lines and they're easy to administer. Sometimes the courts look a little bit more closely, particularly in public spaces, where people still do have expectations of privacy to try and decide…

  • 10:54:33

    ROBERTSAlthough fewer all the time.

  • 10:54:35

    ROTENBERGFewer, but, you know, I mean, if someone were walking down the street with a device that could peer through people's clothes, I think we would say, even though we're walking down the street, we don't anticipate that people can peer through our clothes. So it's important to understand that even in public spaces, there will be expectations of privacy.

  • 10:54:50

    ROBERTSWe have time for one more caller. And let's go to Louise in Tampa, Fla. Louise, you're on "The Diane Rehm Show," but you've got to be quick.

  • 10:55:01

    LOUISEYes. Good morning. Well, we haven't mentioned environmental reasons. You talk about a reporter wanting to get a drone on a site. Well, what if I'm reporter that wants to go there in person? I'm not sure how high up the drones cover. Are they going to -- am I going to be afraid? Well, what if it's capable of discerning me, but then it can climb down and knock over a pine tree, like, with an eagles nest in it, because it's -- well, that would be considered not important, you know, as long as they could get the news.

  • 10:55:35

    LOUISEAnd then what about all these going around, and then we have (unintelligible) of abandoned drones that have fallen or left on the ground? So none of these things have really been considered. It sounds like a real slippery slope. I don't like any of it.

  • 10:55:48

    ROBERTSThank you very much. Alan, there have been a number of cases in national parks, regulations trying to restrict use of drones, partly for the issues that Louise is mentioning.

  • 10:56:01

    LEVINI'm actually thinking of a case here in D.C. where a fellow was flying a drone illegally, lost control of it, and put signs out around the neighborhood saying, "I lost my drone. Help me find it." Somebody called the FAA, and they called the guy up and said, knock it off because D.C. has very strict restrictions on flying drones.

  • 10:56:21

    LEVINNow, Yosemite just restricted drones in the National Parks. I think there is a very strong kind of, you know, you're out in the wilderness, and you have an expectation of quiet and not having a quad copter hovering over your head and all that. But at this point, you know, it's very unsettled exactly what our standards are going to be and how we enforce them.

  • 10:56:42

    ROBERTSFinal word, Rebecca. What do you expect to happen on the legal front here, at least involving regulations and court cases?

  • 10:56:50

    MACPHERSONSo I think what we're going to see is, A, I think that the National Transportation Safety Board, who is hearing the case that the FAA took enforcement action, is going to find that drones, in fact, are aircraft and that that case was wrongly decided.

  • 10:57:03

    MACPHERSONBut I think it may well also challenge the agency and tell it that it does not have the ability to enforce all those different regulations that they did not seek enforcement action on because they have not issued regulations. I think they will come out with regulations. I don't think they're necessarily going to meet the end of the year, but that they'll be much more truncated.

  • 10:57:25

    ROBERTSThat's Rebecca MacPherson. Also with me, Alan Levin of Bloomberg News, Marc Rotenberg of Georgetown, Michael Toscana, the Association for Unmanned Vehicle Systems. I'm Steve Roberts sitting in today for Diane. She's out with a cold. But thank you so much for spending an hour of your morning with us.

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