Senator Markey Proposes Drones Privacy-Enhancing Amendments to FAA Reauthorization Act

Written by Alex Bradshaw

The Senate Commerce, Science and Transportation Committee will mark up the Federal Aviation Administration Reauthorization Act of 2016 (S. 2658) this Wednesday (March 16th). The bill includes a number of provisions designed to accelerate commercial and government use of unmanned aircraft systems (UAS) – “drones” – as well as provisions outlining UAS data privacy requirements. Senator Markey has proposed various privacy-enhancing amendments to the bill that we hope the Committee will give particular attention during Wednesday’s mark up.

CDT has long supported federal legislation that puts privacy protections in place for the use of drones. We also recently proposed data privacy best practices for commercial and hobbyist use of drones and weighed in on DHS’ guidance for law enforcement use of drones. We testified twice on UAS regulation in 2015 and called on Congress to enact legislation that:

  • Requires public UAS operators to submit a data collection statement as part of the FAA UAS certification process. The data collection statement should outline the agency’s data collection, retention, and use policies, and provide an individual point of contact;
  • Requires the FAA to establish a publicly accessible database indexing public UAS licenses and data collection statements. This could be similar to the FAA’s database for private aircraft;
  • Requires law enforcement agencies to obtain a warrant for persistent UAS surveillance of individuals or private property. Exceptions to this requirement should include exigent circumstances such as destruction of evidence, hot pursuit of a fleeing suspect, and emergency situations involving imminent danger of death or serious injury; and
  • Bans lethal weapons – “firearms” as defined by 18 USC 921 – from public, private, and hobbyist UAS. Exceptions could include military testing, training, taking off and landing of military drones from the US.

Sen. Markey’s amendments to the 2016 FAA Reauthorization Act would implement many of these requirements. In addition to giving the agency rulemaking authority to create UAS data privacy rules, Markey’s amendments would mandate the creation of an “easily searchable online database” of government and commercial UAS operators. The existing reauthorization bill also mandates creation of a database; however, the bill does not require an operator to be listed in the database if inclusion would interfere with “national security, homeland defense, or law enforcement.” This exemption is far too broad and could exclude the majority of (if not all) government UAS operators. Sen. Markey’s amendments more appropriately scope the exemption; the database requirement would not apply to situations involving immediate danger of death, serious physical injury, or “activities threatening the national security interest” (although we should note that “national security interest” could be broadly interpreted as well).

Markey’s amendments would also require a more complete UAS profile to be included in the database. The existing bill requires the FAA to list the operator name, contact information, expiration date of authorization for UAS operation, and UAS identification number (we’ve previously recommended a “license plate” identification system). Markey’s amendments mandate inclusion of this information as well as details on the location, time, and purpose of operations, and a list of the UAS’ technical capabilities (camera-equipped, etc.). Additionally, (and most importantly), Markey’s amendments would eliminate the bill’s provision allowing the FAA to terminate the database once a UAS identification system has been established. The existing bill would allow the FAA to stop operating the UAS database once a national drone identification system is put in place. Although we need a UAS identification system – and the Reauthorization Act is correct in requiring the FAA to put forth rules outlining this identification system – if a drone cannot be detected by the identification system, individuals would have no way of knowing that the drone exists. It is critical that the FAA database be available for searching all drones operations regardless of whether these operations are identifiable by sight or other means.

Mr. Markey is also expected to pursue an amendment on the floor that would require government entities to obtain warrants to use UAS for protective activities or for law enforcement or intelligence purposes. No warrant would be required in exigent circumstances; however, operators would be expected to minimize collection of and in some cases destroy unrelated data. CDT has written extensively on warrant requirements for drones. Passing Markey’s amendment would be a major step toward preventing overbroad government UAS surveillance.

Senator Markey’s amendments will significantly strengthen the existing UAS-related provisions in the FAA reauthorization bill. The Senator’s approach would establish meaningful privacy standards for government and commercial operations while preserving the many beneficial uses of this technology. We hope Committee members will support Sen. Markey’s efforts to move these amendments forward.

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