Last July, a Kentucky father spotted a drone hovering over his backyard, where his two daughters were purportedly sunbathing. He took out his shotgun and shot the drone down. Later he ruminated that “[w]e don’t know if they’re pedophiles looking for kids, we don’t know if they’re thieves. We don’t know if it’s ISIS.”
Drones embody surveillance. They provide a visual and sometimes physical target for privacy fears. Drones have catalyzed state privacy lawmaking and prompted numerous conversations about coming privacy concerns. Intriguingly, however, the driving drone privacy narrative hasn’t been about location tracking, or pervasive government surveillance. It’s been about sunbathing young women.
The Kentucky father protecting his daughters is in good company. A New Jersey man also shot down a drone to protect his family’s privacy. A woman in Virginia Beach, Virginia, told a drone operator that hovering over sunbathers on a private beach was “creepy.” A Connecticut woman assaulted a drone hobbyist for taking pictures of people on the public beach with his “helicopter plane.” A California man threw his T-shirt over a drone on a public beach, explaining that “[w]e had like a peeping Tom.” A Florida resident alleged that drones had been spying on her sunbathing teenage neighbor: “They’re recording children in bathing suits or they’re recording the teenager across the street, who lays out in her front yard in her bikini.” (By the way, that narrative about the Kentucky father protecting his daughters has been challenged since his arrest. He won in state court but a federal suit filed by the drone owner is pending.)
The sunbather narrative has made its way to the United Kingdom, where a Bristol woman quickly covered up after seeing a drone overhead. And it has made its way into academic and policy work. Drone expert Gregory McNeal talks about the sunbathing woman in his Brookings Institution report “Drones and Aerial Surveillance,” writing, “While the police are overhead photographing 123 Main Street, they look down and see a woman sunbathing in the adjacent property at 125 Main Street. …” Arizona State University law professor Troy Rule, in proposing a localized zoning system for drone use of airspace, discusses how “[i]ndividuals flying camera-fitted drones above residential neighborhoods have disturbed sunbathers in their private yards.” (ASU is a partner with Slate and New America in Future Tense.)
With all we know about the complexities of information privacy, why is the female sunbather the story that keeps capturing attention?
Maybe it’s because the sunbather narrative is easy; it’s concrete. A woman or girl who otherwise wouldn’t expose herself in a bikini suddenly has a much wider audience than intended. Maybe it’s because the sunbather narrative is actually happening at a greater frequency than other privacy issues; people are perverts, and prurience is a great motivator. Or maybe the sunbather narrative is just the latest spin on the old, old tale of Lady Godiva: Peeping Tom takes a look at the nude woman and is consequently struck blind or dead.
The story of Lady Godiva is a myth filled with fascinating gender dynamics. Most scholars believe that the ride didn’t actually happen. According to legend, Lady Godiva pleaded with her husband, Count Leofric, to lower taxes. He told her he would do so the day she rode nude through town at noon. When in protest she did just that, the people of the town of Coventry stayed indoors out of respect, to preserve her modesty. But Peeping Tom ignored the social contract, gazed at her out of lust, and was punished. According to professor Daniel Donoghue, who has tracked the development of the Godiva myth, the story evolved over time to include Peeping Tom. Donoghue explains, “Tom would become the scapegoat and bear the symbolic guilt for people’s desire to look at this naked woman.” Peeping Tom became a point of resolution for conflicting impulses over freedom, control, and lust.
The sunbather disrupted by drones is a Lady Godiva story, of sorts, without the tax policy. A young woman expresses liberation by wearing a bikini in her backyard or on the beach. Everyone generally follows social norms and refrains from staring for too long, or taking photos or video. But the hovering drone breaks that agreement and must be punished, just like Tom. Often it’s dad who does the punishing, but sometimes it’s just a Good Samaritan. Law isn’t very helpful. Existing state Peeping Tom laws mostly do not cover these incidents, because many require trespassing or peeping in through the windows of an actual house.
The problem with letting the sunbather narrative dominate drone privacy coverage is that it provides a woefully incomplete account of the kinds of privacy concerns that drones raise. If we legislate to protect the modesty of sunbathers, we risk letting significant issues fall by the wayside. That’s leaving aside questions of whether privacy and modesty are equivalent (they’re not), and whether the father-daughter dynamic that results in a shot-down drone is a healthy one (take a guess).
The sunbather story fails us because it ignores issues of information privacy. Drones will collect enormous amounts of information and absent federal omnibus data privacy law, which we don’t have in the United States, there is next to nothing to govern that data’s processing or use. This includes combining data from one drone with data from other devices, to create a near-complete portrait of somebody’s physical interactions. Retailers and insurance companies, just as examples, could certainly be motivated to create these kinds of data portraits of people. (As of publication, insurance companies had received 276 special permissions from the Federal Aviation Administration to use drones.) We are already profiled online by data brokers; companies have every incentive to try to extend that profiling to physical space. And they don’t want to have to ask for permission to get it.
Our current federal privacy regime, depending on enforcement actions by the Federal Trade Commission, is premised on protecting consumers from broken promises and unfair actions by the companies with which they transact. The problem with drones and other new technologies is that a person who gets tracked by a drone usually won’t be the drone’s owner. He or she thus won’t have the consumer relationship with the drone company that triggers FTC protection. The FTC is ill-equipped to govern this, in the same way it is ill-equipped to govern the “Internet of Other Peoples’ Things.”
The sunbather narrative fails us in other respects as well. For instance, it doesn’t address facial recognition technology. Our inescapable biometric identifiers mean we can lose the practical obscurity in which we usually operate in physical spaces. People out there in public might not recognize or identify us—but drones will. This allows those in possession of drone video to much more readily profile particular individuals. The sunbather story also doesn’t address that many times, drones will be gathering information using superhuman senses, like thermal imaging, that we aren’t accustomed to acknowledging and can’t practically shield ourselves from. And the sunbather narrative fails to capture cybersecurity problems. If you think drones are disruptive now, just wait until they’re hacked.
However, the sunbather narrative isn’t completely wrong. It resonates precisely because drones, like an array of other new technologies, sit at the intersection of spatial and information privacy. The sunbather story illustrates a spatial privacy problem: Once, fathers thought their daughters were protected by the six-foot privacy fence. (The daughters themselves may or may not have cared.) Now, drones make that fence irrelevant. Physical architecture once constrained people from seeing into others’ backyards or upstairs windows; now drones, like thermal-imaging technology, can discern information that was otherwise obtained only at great cost. The question is whether or when the law should intervene to impose legal costs where the physical and financial constraints have fallen. Law can enable us to continue to manage our privacy using features of the real world that we’ve grown up with—and grown dependent on.
As social actors, we regularly use cues from our physical and social environments to decide how much we want to disclose in a particular setting. Technologies like drones disrupt environments. They take down walls. They distance the human operator from the enforcement of social norms in a particular setting (like the beach). They disrupt our ability to calculate how much we’ve disclosed by potentially tracking behavior over time, at far lower cost than a helicopter.
The Supreme Court is starting to understand these things, although it took some time. In 2001, the court found police use of a thermal-imaging device violated the Fourth Amendment because it “might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath.” (There’s Godiva again.) The court hinged its decision about new information technology and spatial privacy on whether the new technology had been widely and publicly adopted. This reasoning raised a host of concerns about a downward ratchet in privacy law; would we lose Fourth Amendment protection just by widely adopting new technology?
By 2012, however, five justices understood that using GPS technology to persistently track somebody’s location over nearly a month, even in public places, and even though GPS technology is certainly in widespread public use, could violate a reasonable expectation of privacy and thus the Fourth Amendment. These justices recognized that we calibrate behavior based on the assumption that it’s just too hard or too expensive for someone to follow us that consistently, over that amount of time. And persistent tracking over time and space can disclose sensitive information, such as religious beliefs, or sexual or political preferences.
The Fourth Amendment applies to law enforcement, not to private actors. But current developments provide better ways of thinking about data-gathering technologies such as drones. Like GPS, drones make it cheaper and easier for creepy neighbors to follow someone over an extended period of time. Like thermal imaging (and sometimes using thermal imaging), they make the physical barriers that we rely on less effective. Drones pose a hybrid of information and spatial privacy problems. That hybrid of issues is increasingly the problem of this age.
Currently, there’s no national regulatory regime in place to handle drone privacy. (There are a number of state privacy laws, but most states have no privacy laws that would cover the sunbather, or persistent tracking by drone, or drone data use.) The Federal Aviation Administration has said it wants to stay out of privacy issues; a court just this month refused to weigh in to compel the FAA to address privacy before its final rules have come down. Last year, the president instructed the National Telecommunications and Information Administration to host the development of industry best practices for drone use. That process is ongoing, but many public interest groups have chosen not to participate in it after the failure of the NTIA’s best practices for facial recognition.
In April, the Senate approved a bill reauthorizing the Federal Aviation Administration. The bill would, among many other things, suggest (but not require) that drone operators “for compensation or for hire, or in the furtherance of a business enterprise” create a privacy policy enforceable by the FTC. The bill provides no substantive requirements for those policies, allowing companies to set their own low standards—or not set them at all. Absent consumer relationships with those tracked by drones, it’s unclear what would motivate companies to put good privacy policies in place. The bill also instructs the NTIA to submit a report to Congress on industry best practices that may serve as the basis of federal legislation. Again, given the weaknesses of the NTIA process (in which I’ve been involved), this is not a good source of substantive privacy recommendations. The Senate bill pre-empts drone-specific state laws, which would foreclose local experimentation with drone policy, including privacy. This is ill-advised. It remains to be seen what will happen in the House, but its controversial Aviation, Innovation, Reform, and Reauthorization Act similarly leans heavily on the NTIA.
Drones have many, many positive uses, from safety inspections to environmental research to monitoring police behavior. But when we’re discussing the privacy problems they raise, it’s about time we got away from the bikinis.
This article is part of the drones installment of Futurography, a series in which Future Tense introduces readers to the technologies that will define tomorrow. Each month from January through June 2016, we’ll choose a new technology and break it down. Read more from Futurography on drones:
- “Do Drones Have to Be Creepy?”
- “Your Cheat-Sheet Guide to the Key Players and Debates for Drones”
- “The Rise of Nonviolent Drones”
- “The Six Biggest Misconceptions About Drones”
- “What Can Consumer Drones Actually See?”
Future Tense is a collaboration among Arizona State University, New America, and Slate. To get the latest from Futurography in your inbox, sign up for the weekly Future Tense newsletter.
