The Photo and The Drone: A Historical Perspective on Privacy



    The Right to Privacy, while different than the expectation of privacy, has some similarities. There are two types of expectations of privacy: first, a subjective expectation of privacy which is that is in individual’s opinion, certain locations or situations are private (this can vary greatly from person to person) and second, an objective/reasonable expectation of privacy which is privacy generally recognized by society.

    The issue where law and technology collide is that technology can change the expectation of privacy. Before the Kodak Brownie, the taking of one’s photograph could— technologically—only be done with one’s permission. The concept of the “snapshot on the street” simply did not exist. Today, for someone to believe that there are no devices with cameras or video recording in their proximity is simply unrealistic. Further, the ability of a drone to carry a camera and capture images, photographs and many other data points, certainly changes any expectation of privacy that we may have. When the privacy laws were written, it is doubtful that the lawmakers contemplated thermal imaging and audio recording through walls in rooms at the top of buildings.

    While the technology of drone can be a tremendous tool to progress society, it does not come without risks. The question becomes who will most influence the coming regulations: paparazzi, hobbyists, legitimate commercial users, nefarious “drone fiends”, or even law enforcement or the government.

    From the timeline shown, it seems that we are at risk of history repeating itself where the regulations (e.g. privacy laws) were crafted to respond to less than honorable uses of new technology.

    1888 – Kodak introduces the $25 camera ($638 in today’s dollars). At this price (plus processing), photography is limited to a relatively small number of wealthy hobbyists. However, photography is introduced to the general public.

    1898 – Tesla demonstrates a radio-controlled boat. Ironically, the U.S. military sees no future in radio-controlled or remote-controlled devices.

    1890 – Kodak introduces the Brownie camera, which sells for $1.00 (about $25.00 today) with film costing $0.15, making photography available to just about everyone. The result is the ability to take the “snapshot” to capture any citizen at a moment’s notice without the need for posing. Prior technology required subjects to remain still—action photos and spontaneous photos were previously not possible.

    1890s – The “camera fiend” (paparazzi, voyeur, etc.) appears, engaging in activity that includes catching female bathers at beaches and capturing pictures of citizens in public without their permission. This is met with fear, and results in beaches banning Kodak cameras. Kodak camera is banned from the Washington Monument. A Connecticut newspaper publishes “the sedate citizen can’t indulge in any hilariousness without the risk of being caught in the act and having his photograph passed around among his Sunday School children.”

    1890 – Samuel Warren and Louis Brandeis (soon-to-be Supreme Court Justice Brandeis) publish The Right To Privacy in Harvard Law Review. The article is a reaction, in part, to technology such as the Kodak camera, and directed at the increase in newspapers and photographers taking pictures of every day citizens without regard to privacy of that citizen, when there are no real privacy laws. The focus of the article was to discuss every citizen’s “right to be left alone.” It states, “Now that modern devices afford abundant opportunities fot the perpetration of such wrongs [invasion of privacy/photos without permission] without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation.

    1920 – A British company builds and tests a radio-controlled, unmanned plane with a 100-mile range.

    1928 – Supreme Court Justice Brandeis, who is concerned with technology undermining the right to privacy, writes a dissenting opinion, stating that “discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

    1930s – The British company sells the first radio controlled planes.

    1986 – The U.S. Supreme Court rules in California v. Ciraolo that police officers who identify marijuana plants in a suspect’s backyard from a plane at an altitude of 1000 feet do not violate the Fourth Amendment. When the individual claiming an invasion of privacy from drones is a drug dealer, the Court decides that the public policy of stopping drug manufacturers outweighs any privacy issues. Then, in Dow Chemical Co. v. United States, a decision addresses government use of a commercial mapping camera to take aerial photographs of an industrial facility. When a corporation claims an invasion of privacy by the EPA enforcement division, the Court decides that the ability for the EPA to protect the environment outweighs any other privacy issues.

    1989 – In Florida v. Riley (1989), the U.S. Supreme Court holds that police officials do not need a warrant to observe an individual’s property from public airspace. This further undermines the right to privacy in law enforcement activity.

    2001 – In Kyllo v. United States, the U.S. Supreme Court rules against the government in a case involving use of a ground-based thermal imaging to detect an indoor marijuana growing operation by measuring the temperature of the roof and outside wall of a house. The Court expresses concern that allowing the government to freely collect any information “emanating from a house” would put people “at the mercy of advancing technology – including imaging technology that could discern all human activity in the home.”

    2007 – The FAA issues a statement that “no person may operate a UAS [unmanned aircraft system] in the National Airspace System without specific authority” and begins enforcing $10,000 fines against “commercial users.” There is limited exception for hobbyists flying (a) below 400 feet, (b) on your property, (c) not for commercial or business use, (d) within your line of sight and (e) not within five miles of an airport.

    2010-2012 – Smaller, private citizen drones become available and can carry cameras. Occupy Wall Street uses drones to live stream images of protesters. In general, drones are banned from U.S. airspace by White House and FAA. The public begins to react to the ability of drones to use cameras in places not previously available (over protests, car wrecks, in swimming pools, in second story windows)— in a similar fashion as the 1890s.

    2011 – Raphael Pirker flies a drone with a camera over the University of Virginia, with permission from the university. The FAA issues a $10,000 fine for flying a commercial drone and for flying too low. Supreme Court Justice Sotomayor comments that changes in surveillance are frightening and that “there are drones flying over the air randomly that are recording everything that’s happening on what we consider our private property. That type of technology has to stimulate us to think about what is it that we cherish in privacy and how far we want to protect it and from whom.”

    2013 – DJI generates $131 million in sales of non-military drones, 3D Robotics sells 30,000 units and Parrot (a European public company) generals 42 million euro in sales (about $51 million) revenues are up three to five times since 2009.

    2014 – It is reported by Bloomberg that an unnamed source at Amazon states that Amazon is selling about 10,000 drones per month—it is a big Christmas gift. In contrast, Unmanned Vehicle Systems International (a trade group) says that every year the ban remains in place, the U.S. loses more than $10 billion in potential economic benefits from drones. Reported in the LA Times, over the span of 2014, are a number of stories regarding the technology. At a California beach, a mother reports to a lifeguard that a drone was hovering near her and her daughter, and snapped photos while they were tanning. In Connecticut, a woman attacks a man flying a drone at a beach, accusing the man of taking pictures of her. At Mt. Rushmore, a U.S. Park Ranger confiscates a drone that was flown near the monument and over the heads of visitors.

    2015 – The Law requires the FAA to integrate the drone into FAA regulations. The FAA will miss this deadline, and safety concerns and privacy issues remain. Trade groups partner with FAA release

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    Jordana Megonigal
    Jordana Megonigal is a journalism professional with 18 years of experience in the field. She is Publisher of ShowCase Publishing and Business Black Box magazine. In the Upstate community, Jordana is a member of the Small Business Council (Greenville Chamber of Commerce), a board member for Compass of Carolina, co-chair of Greenville Women at Work, communications chair of Mission 1:27 (Taylors First Baptist Church), and serves as a Guardian ad Litem. She is also Executive Director of The Bootstrap Engine.