Participants in the National Telecommunications and Information Administration’s multistakeholder process to develop best practices for privacy, accountability, and transparency issues regarding commercial and private use of unmanned aircraft systems (UAS), or drones, debated today whether they should consider only issues that are “unique” to UAS, which might not cover much according to some participants’ views.

NTIA officials emphasized, as they are wont to do, that they act merely as conveners and that decisions on process as well as substance must come from the stakeholder participants.

“Stakeholders that have the most influence are those that work together,” John Morris, associate administrator and director–Internet policy in NTIA’s Office of Policy Analysis and Development, said today.

The multistakeholder process is the outcome of a presidential memorandum issued in February that called for promoting U.S. economic competitiveness in domestic UAS use while protecting privacy rights, civil rights, and civil liberties (TRDaily, Feb. 17).

In a presentation, FAA officials outlined that agency’s ongoing rulemaking that proposes opening the door to nonrecreational operation of drones that weigh less than 55 pounds and fly within line of sight of the operator, among other restrictions.  Currently only recreational or hobbyist uses are allowed, and federal law bars future FAA regulation of such craft.

The FAA’s notice of proposed rulemaking issued in February calls for operators to have a “knowledge-based” license, that is, they would have to pass a written test but not be required to have flying experience or demonstrate skill operating a drone.

In response to a stakeholder question about what notice the FCC might take of the best practices, Anne Bechdolt, a senior attorney for regulation and Enforcement in the Department of Transportation’s Office of the General Counsel, said that the FAA and DOT do not have authority in the area of privacy.

John Verdi, director–privacy initiatives in NTIA’s Office of Policy Analysis and Development, said that his understanding of the presidential memorandum “is that best practices are to help guide the rollout of these services,” rather than to be a document that would be “adopted” by UAS operators.

Among the issues raised by participants for future discussion were obligations to ensure the security of data collected by drones; the possibility of creating multiple levels of best practice adherence so that the resulting work product would not be an all-or-nothing list to be accepted or rejected in its entirety; the rights of the drone operators to fly “anonymously” or “pseudonymously”; and the possibility that the licensing requirement would be a barrier to student film-makers who wish to use drones

Pepperdine University law and public policy professor Gregory  McNeal, who is also co-founder of AirMap.IO, delivered a presentation on examples of commercial and private UAS operations that are currently in use or expected to be in use within the next few years.  Among the uses he cited were to inspect cell towers and utility poles without the risk of someone climbing them.  Utility poles, he noted, rot from the top down, so deterioration is not necessarily visible from the ground before attachments are at risk.

Carl Szabo, policy counsel for the e-commerce trade association NetChoice, suggested that it would be helpful to look at what is covered by existing state privacy laws.

While some participants suggested that the main concern is drones that can fly over someone’s backyard, Harley Geiger, advocacy director and senior counsel for the Center for Democracy and Technology, argued that “the public’s concern is more about the persistence issue”–that is, that the advent of drones means they can be observed constantly, no matter where they are.  “This will lead to a ring of steel almost everywhere,” he said.  “We need to push back on this notion of voyeurism for which we already have law.”

Mr. McNeal said that he believes the group’s mandate “is to solve problems that are unique to drones,” and he suggested that the backyard scenario is not unique to drones, given that someone in a helicopter or even a neighbor at a second-story window could see into someone’s back-yard.   He suggested that “unmanned aircraft begin to change the calculus” as a result of their “ability to follow individuals over time.”

However, Mr. Szabo suggested that the persistence issue is not drone-specific.  “Even your following me down the street might be subsumed by stalking,” he said.

Mr. Verdi urged participants between now and the Sept. 24 meeting to think about proposals by Mr. Geiger for the group at the outset to develop a charter with goals and time lines, and to empower chairmen to cut off debate when it becomes circular and fruitless and require participants to make their points in writing.

Later meetings are planned for Oct. 24 and Nov. 20.  —Lynn Stanton, lynn.stanton@wolterkluwer.com