Monday, October 6, 2014

Use of UAVs for Commercial Purposes in U.S.: Privacy Measures

Now that the Federal Aviation Administration (FAA) has begun to allow UAVs to be used for commercial purposes in the U.S. (albeit for limited purposes) one should expect there to be increased attention paid to the potential privacy concerns. That is why I found reports of a recent Government Accountability Office’s (GAO) audit of the U.S. Customs and Border Protection’s (CBP) privacy practice with respect to its use of UAVs to be of value.  In its presentation, the GAO reported that the CBP had developed appropriate procedures to protect civil liberties and privacy. While commercial operators are subject to different laws and policies than U.S. government agencies, the GAO audit is instructive as to some of the measures operators should consider as they begin to use UAVs for commercial purposes. 

The GAO noted that the CBP primarily operated UAVs only within the designated areas to help ensure that sensors “only capture images and information necessary for the authorized mission” The limited deviations outside of the designated areas were primarily due to weather and pilot error.

The GAO also found that the CBP took a number of measures to ensure that the imagery and radar data that was collected was properly secured, stored and disseminated. These measures included: (i) encrypting the transmission of UAV video; (ii)  restricting access to real-time video to authorized users; (iii) restricting disclosure of analytical products that contain UAV-obtained images; (iv) identifying sensitive information prior to disclosure; (v)  maintaining a log to track the dissemination of all analytical products that contain UAV-obtained images; and (vi)  handling UAV-obtained images that are to be used as evidence in accordance with rules of evidence.

The GAO noted that all CBP employees are required to complete annual training in privacy awareness, civil rights and civil liberties, ethics and the CBP Code of Conduct. In addition, law enforcement officers must take additional training focused on privacy, civil rights, and civil liberties issues related to the collection, processing and safeguarding of evidence.

UAVs are increasingly being seen as disruptive technology, causing lawmakers and regulators at both the federal and state level to take a hard look at means to protect privacy from overhead sensors. As a result, operators of UAVs should keep the measures cited above in mind as they begin commercial operations, particularly if they are working on behalf of government clients. (It is interesting to note that CBP apparently takes these measures even though its UAVs fly “primarily at an altitude between 19,000 and 28,000 feet, where the video images do not permit identification of individuals or license plates.”)  

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