This blog post arises from Future Tense, a partnership of Slate, the New America Foundation, and Arizona State University. On Tuesday, May 7, Future Tense will host an event in Washington, D.C., on the use of drones in the United States. For more information and to RSVP, visit the New America Foundation’s website.
There are a number of competing visions for our impending drone future. Some, as Brad Allenby pointed out in Future Tense, view domestic drones as hallmarks of a militarizing society; others see drones ushering in a privacy-deprived surveillance state run amok; and still more see in drones an opportunity to eliminate the "dull, dirty, and dangerous" hassles of everyday life. Whatever analogy we choose for drones – whether we see them as flying cellphones or inevitable agents of the panopticon, or something else entirely – will dictate the legal scaffolding around their use. In building this infrastructure, we should not lose sight of the important First Amendment dimensions of drones as a newsgathering tool.
Aerial newsgathering is nothing new. In 1906, George Lawrence used 17 kites and steel wire to suspend a 46-pound camera into the air and capture panoramic photos of earthquake- and fire-damaged San Francisco. Fifty-two years later, John Silva changed the landscape of television news reporting through the KTLA5 "Telecopter," ensuring that news helicopters could deliver live traffic updates and car chases alike to the masses.
The storied history of bird’s-eye newsgathering already includes a chapter on drones: In 2011, a RoboKopter was used to report on protests in Warsaw, while defunct News Corp.’s now-defunct the Daily employed a news drone to gather footage of flooding in South Dakota and storm damage in Alabama. Both the University of Nebraska-Lincoln's Drone Journalism Lab and the University of Missouri Drone Journalism Program explore how drones can further overcome spatial limitations in reporting. "J-bots," as William Allen of the University of Missouri calls them, have huge potential to report on natural disasters, agricultural development, forest fires, and the impact of drastic weather patterns—all issues of great interest domestically. Abroad, journalism drones could provide additional glimpses of escalating conflicts and other newsworthy circumstances that are increasingly too hazardous for many journalists to brave.
Under existing laws, camera-equipped drones engaged in communicative photography would enjoy First Amendment protection—even if a number of operational hurdles, including public safety, trespass, data protection, and property law considerations have yet to be resolved. Photographing and filming (though not necessarily audio recording) matters of public interest in public places fall under the umbrella of free expression and are limited only by reasonable time, place, and manner restrictions. Government oversight is also a core justification for this right, as the Department of Justice clarified in a Statement of Interest last month.
Of course, protections for filming public spaces have not gone unchallenged, particularly as of late. Over the past few years, law enforcement officials have confiscated video cameras or camera-equipped smartphones from photographers in public places, as Mickey Osterreicher of the National Press Photographers Association explains, pursuant to fuzzy justification and whim. Last week, a woman in Utah faced charges under the state’s new "ag gag" law for filming a slaughterhouse from a public street. Though the charges were dropped, similar ag-gag bills are popping up throughout the country, placing limitations on citizens’ rights to record. In a similar vein, well-intentioned but overbroad anti-paparazzi laws have popped up in both Hawaii and California. Drones have burst into the collective public consciousness at a time where challenges to what can be filmed are mounting—and pending drone legislation should be understood against this backdrop.
Much of this can be attributed to the ubiquity of recording and documenting devices, which render public space not just public, but permanent. Unobtrusive devices with the ability to document forever means that accountability, or undesired publicity, is always just around the corner. This anxiety is baked into the earliest articulations of privacy: In 1890, Samuel Warren and Louis Brandeis sought some conceptual refuge from "Kodakers lying in wait" and ended up with a theory of privacy. Despite this long-standing discomfort with public recording, however, American jurisprudence generally does not embrace any concept of privacy in public spaces. This makes room for our robust tradition of newsgathering and recording, but also contributes to an increasingly palpable sense of vulnerability in public.
Drones put a fine point on that sense of vulnerability, and as eminent drone theorist and law professor Ryan Calo argues, can thus be seen as "privacy catalysts" that may well precipitate more comprehensive privacy protections. This certainly rings true at the moment, as 39 states have proposed bills focused on drone use. At least two bills—in Texas and Montana—have proposed measures broad enough to rope in aerial, photographic newsgathering out of the greater desire to limit what appears to be a Frankenstein’s monster of technological advancement: low-cost, powerful cameras paired with the dexterity, availability, and versatility of a smartphone, topped off with a vantage point ranging from in-your-face to helicopter-high.
Crafting laws to reconcile both privacy and First Amendment interests will be no small feat. For one thing, privacy concerns already seem to dominate the legislative imagination when it comes to drones. What’s even more complicated is that the most dystopian vision of our drone future—an all-seeing, all-knowing, all-tracking dragnet—would run afoul of First Amendment freedom of association protections but not newsgathering interests. It’s not inconceivable that a drone dragnet would also chill speech—and if seeing more makes us all speak less, we have a problem.
But similarly dystopian would be a world in which newsgatherers face new and drastic limitations in what they can record, report, observe, and communicate. Privacy-catalyzing drones must not precipitate a First Amendment catastrophe. One interim balance, as Margot Kaminski, executive director of the Yale Law School Information Society Project persuasively argues, is letting states engage in "drone federalism" to experiment with workable, constitutionally-sound solutions. And if we do inch past the existing, cobbled-together privacy patchwork of policies, ethical guidelines, and state tort laws to more coherent privacy law, we must include broad newsgathering protections in any comprehensive, federal privacy regulation. No laws—even those rooted in well-placed anxieties about the accelerating pace of technology—should swallow long-standing protections for what is available to the public.