Mass Hysteria Over Drones Flying in the Night Sky? It Didn’t Have to Be This Way

Recent nighttime drone sightings in New Jersey and other places have gained national attention because of the mystery that surrounds the drones—Who is flying them? What are the drones doing? Why are the drones appearing now? Numerous theories popped up to fill the void left by the lack of information—from alien invasion to foreign spying. The more sober and likely explanation attributes most of the drone sightings to a combination of planes being mistaken for drones and perfectly legal nighttime drone flights by hobbyist and local law enforcement or other government or commercial entities.

Understandably people are freaked out by mysterious flying objects roaming around at night. The fact that the government cannot quickly and easily provide enough details about the drone sightings to quell any suspicion that the drones might be up to nefarious activities only adds to the growing unease of drones in the sky. It comes as no surprise that drones are causing such a stir when they are essentially mobile surveillance platforms that can go places traditional manned aircrafts cannot.

Aerial surveillance used to be very expensive and required a pilot. Drones have made aerial surveillance inexpensive and readily accessible. Most drones are equipped with cameras. Even common consumer drones can have high-powered cameras with impressive resolution and zoom capabilities. This is not to even speak of enterprise-level drones used by first responders or used in industrial applications like critical infrastructure inspection. Enterprise drone capabilities don’t stop with just higher resolution cameras with even better zoom but can include, for example, infrared cameras and the ability to fly autonomously at night—scary capabilities for a flying surveillance platform that can easily access traditional constitutionally protected areas like backyards and other areas around a home. Tall fences and windows high above the ground won’t protect from the gaze of a drone. Add the fact that these drones are flying at night, something the FAA only started to allow about a year ago, and it’s not unreasonable for people to be upset about all the drones and the lack of definitive information on them. It didn’t have to be this way.

The FAA has failed to fully address the privacy issues (real and/or perceived) that drones have and will create in communities across the country as they become common occurrences in the sky. It is not for lack of awareness. The FAA has been fully aware that addressing privacy issues is critical to implementing drones into the national airspace—the agency just hasn’t cared to actually do it.

In the FAA Modernization and Reform Act of 2012 the FAA was tasked with integrating drones in the National Airspace. Soon after that Act was passed, the Electronic Privacy Information Center (EPIC) led a petition signed by a coalition of groups, legal scholars, and technology experts that called on the FAA to conduct a rulemaking to address the privacy threats presented by drones.

The FAA went on to acknowledge the importance of addressing privacy in their Congressionally-mandated Comprehensive Plan for drone integration, recognizing “the need to address privacy concerns of the public at large while safely integrating [drones] in the [National Airspace].” But years later when the FAA finally responded to EPIC’s 2012 petition, the FAA denied the petition, saying the agency would not do a separate rulemaking on privacy. At the time the FAA seemed to leave the door open to address privacy, stating in its response to EPIC’s petition that it would consider EPIC’s “comments and arguments” in the context of the upcoming rulemaking on small drones. The FAA slammed that door shut when the small drone rulemaking was released a few months later, stating that privacy “issues are beyond the scope of this rule making.”

EPIC sued the FAA to try and force the agency to act on EPIC’s petition to address privacy but the Court ruled against EPIC on standing grounds and never reached the merits of EPIC’s argument. More recently, the FAA conducted an Advisory Rulemaking Committee (ARC) on Beyond Visual Line-of-Sight (BVLOS) drone operations in which a few privacy organizations, including EPIC, were invited to participate. During the ARC, the ACLU, EFF, and EPIC warned the FAA and other members of the ARC that privacy issues needed to be addressed in any rulemaking for BVLOS drone operations. But in the end, the ARC and the FAA ignored our warnings. Ignoring the problem will not make it go away.

It’s imperative that meaningful privacy protections are implemented, and this requires transparency about drone operations. Drones don’t deserve privacy so information about drones flying in the sky should be readily accessible to people on the ground. EPIC and others have argued that the FAA’s Drone ID requirement should also be used to broadcast information about the drone. For example, whether the drone is a hobby, commercial, or government drone; the purpose of the drone; and the technical capabilities of the drone. This information could be made readily accessible through a free smartphone app that would provide information in real-time about the drones currently flying in your vicinity. Without a way for people on the ground to quickly and easily understand what the drones above them are up to, especially as they fly around at night, we will continue to deal with mass hysteria and conspiracies about them.