Drone sales have exploded in the last two years. The industry is making millions, and experts estimate that the drone business will grow into a $5.6 billion industry by 2020. Drone use is not limited to hobbyists alone, however, as law enforcement agencies and commercial companies have now also began to utilize the technology. But as it is with every new technology, there has been growing pains. Most notably, many industry experts question whether we have sufficient laws in place to protect the privacy of consumers who do not want to be filmed or photographed by drones.

Typically, the Federal Aviation Administration (“FAA”) has control and jurisdiction over drones and their usage under U.S. law. Unfortunately, with the recent explosion of drone sales and usage, the FAA been playing a game of catch up in terms of trying to respond with timely guidelines and regulations. In 2016, the FAA passed a few new regulations: requiring owners of drones that weigh between 0.55 and 55 pounds to register their drone; guidelines over how high drones can be flown and how far away from heavily-populated areas (e.g., airports, stadiums etc.) they must be. Lastly, the FAA rules mandate that owners must operate drones within line of sight. Notably missing from the FAA regulations, however, are guidelines that address data collection and consumer privacy.

Thus, after testimony before the Senate Committee on Commerce, Science, and Transportation confirmed that no current FAA laws govern the companies that fly drones and how they collect, sell, and retain collected information, Senator Ed Markey from Massachusetts introduced legislation entitled “The Drone Aircraft Privacy and Transparency Act” before Congress this year. In his comments before Congress, Markey specifically noted that as more commercial companies add drones to their delivery fleets, these drones have the ability to photograph consumers and their geolocations without consumer consent. And as such, without proper privacy protection in place, drones could potentially photograph license plates of cars outside a health clinic and sell the information to insurance companies.

As such, Markey’s legislation calls for privacy protections and data reduction requirements about the information a drone is permitted to collect. It also requires disclosure provisions for when data is collected and warrants specific procedural requirements for cooperation with law enforcement. Congress’s foray into the regulation of drones comes after a frustratingly slow response from the FAA. In the absence of FAA guidance, state and local governments have stepped in. Over 30 states have already passed laws aimed at protecting consumer privacy from drone use. Texas has already passed the Texas Privacy Act, which prohibits drones from taking photographs of people or private property with the intent to conduct surveillance. It also prohibits possession and distribution of such photographs that were illegally obtained. In response, drone owners have noted that the Texas Privacy Act does not allow Texans to shoot down drones.

For more information on this topic, please visit our Online Privacy service page, which is part of our Internet & eCommerce Practice.

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