About the same time Mark Peterson saw the announcement of a press association workshop on drone journalism, I received a renewal notice on my commercial general liability insurance with pages and pages of exclusions regarding the use of drones. “That won’t be a problem,” I said, having no desire to add what Mark refers to as the ominous sound of a hive of bees disturbed, to our reporting resources. But it behooves us to know something about it, so thank you Mark for attending and writing the editorial.
For some time we have seen the proliferation in the use of “unmanned aerial systems” (UAS) or drones, especially the small, light remote-controlled helicopters with GPS guidance and tiny video cameras.
Given their considerable utility, it would seem that drone applications can only increase exponentially. They’re already used by government agencies for aerial mapping, weather forecasting, geology, agriculture and law enforcement, and for building inspection, firefighting, journalism, conservation, aid delivery, and archaeology.
One could say their use has nowhere to go but up. The costs of a simple drone device have dropped to the point where they are within the reach of almost anyone.
Leaving aside for this discussion their weaponized military cousins, do drones, either in private or public hands, present a threat to privacy or a new way to map our world? And what are some of the social implications of this technology? Will citizens feel safer, knowing that their government is more efficiently protecting them from crime? Or will they feel a great unease, knowing they are being watched on a level only imagined in science-fiction novels? As for journalism, the same kind of drone that helps a local news operation reveal malfeasance can give video paparazzi a magic wand to peer into people’s bedroom windows.
Many legal experts feel that legislation addressing these issues has not evolved nearly as quickly as the technology. The Federal Aviation Agency (FAA) has only recently begun to regulate drones and their “pilots,” primarily about safety, but little consideration so far has been given to how drones are used.
A few states, notably Texas, have passed laws forbidding drone photography of private property without the owner’s permission, and subject the pilot to possible fines and jail time. While these laws are new, and constitutionally suspect, they reflect some of the anxiety felt by many who feel drone use is not an unalloyed good.
There are ethical considerations, as well. The Professional Society of Drone Journalists (PSDJ) has produced a code of ethics on the subject, building on the Society of Professional Journalists’ code. Drone use should be based on a story’s newsworthiness, safety, the sanctity of law and public spaces, privacy, and traditional journalism ethics. Put another way, just because you can use a drone doesn’t mean you should.
The U.S. Constitution has two amendments which address these issues. The First Amendment says, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press….” The Fourth Amendment says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Do drones put these two principles in conflict? Is the drone just another tool in the journalist’s toolbox, a longer telephoto lens, or is it a device that fundamentally changes the balance of the need for public information and the rights of privacy?
Common law has never specified a specific right of privacy when it comes to aerial surveillance; theoretically, someone could fly a drone a foot above a farmer’s field and not be guilty of trespass. But there’s a legal principle called “intrusion upon seclusion,” which forbids someone to intrude, physically or not, into another person’s private affairs or solitude in a way that “would be offensive to a reasonable person.” This would be where a person has a reasonable expectation of privacy.
While legislation may catch up with advances, and deal with the more egregious breaches of privacy, we feel a certain amount of trust should be given to professional journalists to perform their work in an ethical manner. As journalists, we must uphold the press’s task to gather information, both as a constitutional right and as a public good; as citizens, we must uphold the right for people to retain their personal privacy, for the same reasons.