Gregory S. McNeal
84 Geo. Wash. L. Rev. 354
For the first time in American history a regulatory regime is about to allow for small aircraft without onboard pilots—drones—to fly in the national airspace. Legal and technological developments have thus made it all but certain that drones will be a catalyst for new ways of thinking about privacy and surveillance. This is especially the case because the drones that the FAA have approved for operation in the national airspace (small aircraft under fifty-five pounds) are the exact type of drones that local law enforcement will be most likely to acquire and use. Thus, the battle over privacy and aerial surveillance will be fought in statehouses throughout the country. This Article seeks to frame future discussions about how states will handle the privacy issues associated with aerial surveillance.
The Article takes the counterintuitive position that technology has the potential to make unmanned aerial surveillance more protective of privacy than manned surveillance. It further argues that scholars and legislators should move beyond a warrant-based, technology centric approach to protecting privacy from aerial surveillance. Such an approach is unworkable, counterproductive, and may stifle efforts to enact more privacy protective legislative regimes. Instead, this Article proposes that legal reforms should focus on excluding low altitude flights and surveillance coupled with imposing limits on persistent surveillance, requiring enhanced accountability procedures for data retention and access, and creating new transparency, accountability and oversight measures.
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