Government-Operated Drones and Data Retention

Table of ContentsI. Introduction 1139II. Background on Drones 1140III. The President's Order Regarding Federal Government Drone Operations 1143IV. The Need for Action in States and Municipalities Regarding Data Handling Procedures 1147V. Data Retention Procedures for Drones 1149A. Adopt Data Retention Procedures that Require Heightened Levels of Suspicion and Increased Procedural Protections Over Time 1149B. Adopt Transparency and Accountability Measures 1151C. Institutionalize Oversight 1154D. Use Technology as a Way to Protect Privacy, Not Merely Gather Data 1157VI. Conclusion 1159I. IntroductionThe revelations about the National Security Agency's surveillance programs have raised significant questions about how government agencies handle sensitive information gathered through surveillance techniques and other electronic means. As drones become an important tool used by the government, questions will arise about how government agencies store and protect information gathered by drones. This Essay outlines key data retention considerations that government operators of drones should examine.This Essay makes three key points. First, to address the possibility that drones and other sophisticated aerial surveillance technology will allow the government to build a comprehensive picture of an entire community's daily movements (a different persistent surveillance harm), governments should enact laws mandating data retention procedures that require heightened levels of suspicion and increased procedural protections for accessing stored data gathered by aerial surveillance, coupled with a requirement that data be deleted after a legislatively-mandated period of time.Second, governments should impose enhanced transparency and accountability measures, requiring agencies to publish on a regular basis information about the use of aerial surveillance devices-both manned and unmanned-and should consider creating local oversight boards to police the use of surveillance technologies.Third, legal reformers should recognize that technology such as auto-redaction may make aerial surveillance by drones more protective of privacy than human surveillance.II. Background on DronesOn the Sunday of President's Day weekend, 2015, Secretary of Transportation Anthony Foxx and FAA Administrator Michael Huerta convened a hastily arranged public conference call to announce pending regulations that would allow for the integration of drones into the national airspace. The regulations are historic; for the first time in American history, aircraft operating without onboard pilots would have a regulatory regime to govern their use. Sunday of a holiday weekend was an odd time to announce the most significant aviation-related regulations since the creation of the FAA, but the agency's hand was forced. A little more than twenty-four hours before the conference call, I wrote a column for Forbes that revealed the details of the pending regulations-the Associated Press and the Wall Street Journal credited the column with first reporting the news that forced the FAA to announce their regulations.1The use of drones for surveillance has to date been a sparsely discussed topic in legal scholarship; the FAA's proposed changes to federal law, however, make it all but certain that drones will be a catalyst for new ways of thinking about privacy and surveillance.2 This Essay seeks to frame future discussions about how state and local governments will handle the privacy issues associated with aerial surveillance by proposing innovative reforms that move beyond the call for requiring warrants for the use of drones.The FAA's proposed rule is just the start of a new era in aviation, as it is estimated that 30,000 drones will be flying in the national airspace (NAS) by the end of the decade. …