April 23, 2013

Deregulate the Skies: Why We Can’t Afford to Fear Drones

Eli Dourado

Former Senior Research Fellow

The most important lesson of the internet age is that we can’t anticipate what will happen when we give people — from talented engineers and developers to everyday users — an exciting new platform … along with the freedom to innovate on top of it.

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The most important lesson of the internet age is that we can’t anticipate what will happen when we give people — from talented engineers and developers to everyday users — an exciting new platform … along with the freedom to innovate on top of it.

Few could have predicted how profoundly the internet would change our economy. In fact, it was considered “both anti-social and illegal” to use the precursor ARPAnet for commercial activities until 1989. But thanks to the “permissionless innovation” of an open platform, we now have the internet’s seemingly endless uses — not to mention its economic benefits.

This lesson matters because today, we’re on the cusp of opening up another such platform for innovation: drones. Like the internet, airspace is a platform for commercial and social innovation.

Until now, only law enforcement agencies and hobbyists have been allowed to operate drones or unmanned aerial vehicles (UAVs) and systems (UASs) in our airspace. But six new test sites will soon be announced for integrating commercial drones into U.S. airspace, because the Federal Aviation Administration (FAA) has been mandated by Congress to do so everywhere within just three years.

While we’re talking about commercial — not military — applications of drones, people still have concerns: especially around privacy. In their zeal to protect people from “eyes in the skies” collecting data without permission, privacy advocates want drone operators in the early test sites to be constrained by strict privacy policy requirements.

It sounds like a good idea, but it’s not. Such requirements are unwise and definitely premature, as my colleagues Jerry Brito, Adam Thierer, and I argue in our FAA filing today.

It’s true that opening up U.S. airspace to commercial drones will have some important privacy implications to consider. But it’s even more important that we consider the effect of too-early, heavy-handed regulation on future innovation.

As a permissionless, open platform, the internet allowed – still allows — entrepreneurs to try new business models and offer new services without having to seek the approval of regulators beforehandWe can’t predict all the potential uses of drones when airspace restrictions are lifted, but our experience with the internet shows that it’s vital to allow innovation and entrepreneurship to proceed on this new platform without imposing pre-emptive regulatory barriers.

Regulation at this juncture requires our over-speculating about which types of privacy violations might arise. Since many of these harms may never materialize, pre-emptive regulation is likely to overprotect privacy at the expense of innovation.

Frankly, it wouldn’t even work. Imagine if we had tried to comprehensively regulate online privacybefore allowing commercial use of the internet. We wouldn’t have even known how to. We wouldn’t have had the benefit of understanding how online commerce works, nor could we have anticipated the rise of social networking and related phenomena.

Yet some of the proposed privacy requirements are quite onerous for commercial operators of drones — their costs will likely outweigh any hypothetical benefits. Consider the example of a real-estate agent using drones to create detailed, 3-D photos of a property for sale. If that real-estate agent treated every single passerby as a potential victim of privacy violation, would s/he have to stop every single person, ensure each is given access to and the right to review all photographs (even ones not used on the property listing website), and take numerous expensive security measures to protect photos taken in a public space?

Not only would such requirements (and that’s just a shortlist) be overkill, but they’re unnecessary. Because there are already federal, state, and local laws that protect individuals’ rights to privacy. If drone operators violate such laws, they can be prosecuted or sued for damages. For those concerned about drones used for voyeurism, state “peeping Tom” statutes already make such activity illegal. And by actually allowing court cases to proceed and be decided by juries — instead of preempting the state judicial process with federal regulation — we can develop a sophisticated, narrowly tailored body of law that addresses privacy violations by drone operators without harming innovation.

We may further find that we don’t even need to protect privacy through innovation-stifling regulation. Citizen attitudes about commercial drones could follow the familiar pattern we’ve seen play out with other radical innovations: initial resistance, gradual adaptation, and then eventual assimilation of that new technology into society.

This pattern is over a century old: Think about the evolution of the camera and photography. In an 1890 Harvard Law Review paper, Samuel Warren and Louis Brandeis lamented that “instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life” and claimed that “numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” 

But today, every smartphone takes not just photographs but records video, and we tend to regard such capabilities as benign if not empowering. After “the initial panic,” Larry Downes has observed, “we almost always embrace the service that once violated our visceral sense of privacy.”

By allowing time for social norms to adapt, we may find that we’ll all become accustomed to drones.

And even if we don’t, there are other solutions to privacy problems besides heavy regulation. Drone operators could develop voluntary codes of conduct, individuals could learn to employ effective privacy-protecting or self-help countermeasures, the market could create solutions, and so on. But unless we exercise regulatory forbearance now, we may never see less-restrictive means of preserving privacy develop.

An entirely new platform for innovation awaits us, and if we can integrate commercial drones into airspace without preemptive, heavy-handed regulation, the consequences — and benefits — could be as revolutionary as the internet itself. It’s time to start seeing airspace as our next, great platform for innovation.