On February 15, 2015, President Obama tasked the National Telecommunications & Information Administration ("NTIA") of the U.S. Department of Commerce with development of "best practices for privacy, accountability, and transparency issues regarding commercial and private UAS use in the National Airspace System." After engaging industry stakeholders, including Amazon, Google X, and the Association for Unmanned Vehicle Systems International, the NTIA issued its report on May 19, 2016. Titled "Voluntary Best Practices for UAS Privacy, Transparency, and Accountability," the report recommends five best practices:

  • Notify the public: where practical, operators should provide notice to individuals who are expected to be in the vicinity of UAS that will be collecting "covered data," which is defined as "information collected by a UAS that identifies a particular person."
  • Show care: UAS operators should minimize flight over private property, collect no more data than necessary, retain data no longer than necessary, and establish a procedure for accommodating requests to delete, deidentify or obfuscate covered data.
  • Limit the use and dissemination of data: UAS operators should not use, share or disseminate covered data without the consent of those impacted by it.
  • Secure covered data: data should be secured from misappropriation by physical and cyber/technological means, pursuant to a written policy that includes training, monitoring, and restrictions to access.
  • Monitor and comply with "evolving federal, state and local UAS laws."

The NTIA's best practices are predictable and largely are based on common sense. They also are the product of practical challenges and constraints. First and foremost, the NTIA has little or no rulemaking authority with respect to UAS operations, which falls squarely within the jurisdiction of the Federal Aviation Administration. Moreover, even if the NTIA were able to promulgate regulations applicable to UAS operations, those regulations likely would be subject to freedom of speech and First Amendment challenges. In recognition of the First Amendment issue, the NTIA expressly exempted newsgatherers and news reporting organizations from the scope of its recommended best practices. Additionally, federal, state and local privacy laws already exist (although their application specifically to UAS operation largely is untested at this time), and harmonization of a detailed best practices list with this existing privacy law would present a herculean, if not impossible, challenge.

Nevertheless, the NTIA's best practices for drone privacy are a step in the right direction. They are responsive to public demand for government attention to this issue, and contribute to the critical mass of activity facilitating integration of UAS into the national airspace system. We welcome them accordingly.

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