Drones Negative – Quay and Myles

Topicality

1NC—T-ItsInterpretation—“its” means belonging to a thing previously mentionedOxford Dictionary 10 – (“Of”, http://www.oxforddictionaries.com/definition/its?view=uk)Pronunciation:/ɪts/possessive determiner

belonging to or associated with a thing previously mentioned or easily identified: turn the camera on its side he chose the area for its atmosphere.

Violation—the aff curtails drone operations for law enforcement agencies or places restrictions on civilian industries

That’s a voter—

A. Limits—allowing the aff to curtail the surveillance operations of private corporations or separate entities introduces hundreds of new affirmatives—debating about federal surveillance is key to predictability and clash

B. Ground—disads and counterplans are based on federal action—they kill competition and fairness by introducing an unpredictable number of actors

Exts. Interpretation“Its” is a possessive pronoun showing ownershipEnglish Grammar 05 – (Glossary of English Grammar Terms, http://www.usingenglish.com/glossary/possessive-pronoun.html)

Mine, yours, his, hers, its, ours, theirs are the possessive pronouns used to substitute a noun and to show possession or ownership. EG. This is your disk and that's mine. (Mine substitutes the word disk and shows that it belongs to me.)

“Its” refers to the United States federal government and is possessiveUpdegrave 91 – (W.C., “Explanation of ZIP Code Address Purpose”, 8-19, http://www.supremelaw.org/ref/zipcode/updegrav.htm)More specifically, looking at the map on page 11 of the National ZIP Code Directory, e.g. at a local post office, one will see that the first digit of a ZIP Code defines an area that includes more than one State. The first sentence of the explanatory paragraph begins: "A ZIP Code is a numerical code that identifies areas within the United States and its territories for purposes of ..." [cf. 26 CFR

1.1-1(c)]. Note the singular possessive pronoun "its", not "their", therefore carrying the implication that it relates to the " United States " as a corporation domiciled in the District of Columbia (in the singular sense), not in the sense of being the 50 States of the Union (in the plural sense). The map shows all the States of the Union, but it also shows D.C., Puerto Rico and the Virgin Islands, making the explanatory statement literally correct.

States Counterplan

1NC—WarrantsStates can require law enforcement agencies to obtain a warrant prior to drone operationsHeverly 15 – Robert A. Heverly is an Associate Professor of Law at the Albany Law School. (“Game of Drones: The Uses and Potential Abuses of Unmanned Aerial Vehicles in the U.S. and Abroad: ARTICLE: THE STATE OF DRONES: STATE AUTHORITY TO REGULATE DRONES,” 8 Alb. Gov't L. Rev. 29, Quay)

A number of states have enacted legislation that limits public use of drones, especially in terms of law enforcement and a number of states have placed explicit restrictions on drone use by state and local law enforcement. These vary from requiring a warrant for drone operations by enforcement entities – though many warrant requirement statutes provide exceptions in certain defined circumstances – to reporting on drone use by public entities and controlling collection, use, and retention of drone gathered information. Some states have set up administrative agency procedures for authorizing drone use by public entities, and another has instituted training and licensing procedures applicable to public use of drones. State level prohibitions on all use of drones by state and local public entities have also been enacted which may be styled either as "prohibitions" or "moratoria." These may be limited in their application, for example, to a prohibition on using drones for traffic law enforcement, and the state legislation may provide many exceptions to the prohibitions. These attempts to restrict public use of drones often occur both due to legislators' own reactions to drone use and the surveillance possible with them and to public pressure on elected officials to control the new technologies. The restrictions will most likely have no effect on federal operations, whether administrative, law enforcement, or otherwise, as federal officers are most likely not bound by state restrictions in this regard.

State legislation results in inter-state and federal cooperation—no solvency deficitsKaminski 13 – Margot E. Kaminski is the Executive Director of the Information Society Project and a Research Scholar and Lecturer in Law at the Yale Law School. (“Drone Federalism: Civilian Drones and the Things They Carry,” California Law Review, The Circuit, Paper 8, May 2013, Quay)

Thus states have been the historical locus of governance of personal privacy , and , as discussed, have also been the locus of recent tensions between privacy and the First Amendment. This makes them the historical site of experimentation with privacy law that collides with the First Amendment. It is appropriate for state laws to continue to serve that function with respect to civilian drone use. Each state will be able to express privacy values reflective of its own citizens’ differing principles and needs, and courts can determine whether these values collide with the

First Amendment. Eventually, state civilian drone laws may converge into a floor that other states can each build on, with the more successful statutes—the ones that

survive First Amendment scrutiny in courts— serving as the blueprint for eventual federal legislation . For now , however, we truly do not have a uniform idea of how to balance privacy against speech

rights in gathering information. If we federally legislate civilian drone surveillance, we risk creating a Congressional floor that collides with the First Amendment.

Exts. SolvencyState regulations requiring drone warrants before solveSchlag 13 – Chris Schlag is a J.D. candidate at the University of Pittsburgh School of Law. He has a B.S. in Environmental Health from Colorado State University and an M.S. in Occupational Health, Safety and Environmental Management from Columbia Southern University. (“The New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights,” 13 PGH. J. Tech. L. & Pol'y 1, Spring 2013, Quay)

Many states have taken the initiative to propose state specific legislation about drone use within state borders. Florida, Montana, and Virginia were some of the first states to propose legislation in 2013, with the majority of their proposed state legislation just waiting

to be signed into law. Though the states differ in their focus and goals of proposed legislation, the majority of states have proposed legislation at this time. The argument has been made that drones are no more invasive to privacy than the standard helicopter surveillance. However, a survey of proposed legislation clearly

suggests that privacy during drone surveillance is actually a major concern. In a

majority of proposed state bills, states want to implement, at a minimum, a probable cause requirement before law enforcement can obtain a warrant for the use of

drones to collect evidence against an individual. Some states' proposed legislation would ban weaponization of drones owned and operated within the state; other states have focused their bills on limiting aerial surveillance of groups such as farmers and ranchers, or for specific types of crimes, such as felonies. Additionally, two states, Massachusetts and North Dakota, have explicitly limited drone surveillance when that surveillance implicates an individual's First Amendment protected activities.

State proposed legislation is a step in the right direction but is still largely

insufficient in protecting all of an individual's privacy interests. Currently, none of the proposed state legislation fully addresses privacy nor provides sufficient privacy checks on

third party use of drones for surveillance purposes. Under many of the proposed bills, drones can still be used by law enforcement to obtain information available in "plain view" or open space without a warrant , regardless of any existing individual expectation of privacy. Additionally, privately owned drones used for security and/or scientific purposes by third parties are not even discussed under the proposed bills.

The government defers to state regulations on privacy now—the plan reverses that trend and crushes drone federalismKaminski 13 – Margot E. Kaminski is the Executive Director of the Information Society Project and a Research Scholar and Lecturer in Law at the Yale Law School. (“Drone Federalism: Civilian Drones and the Things They Carry,” California Law Review, The Circuit, Paper 8, May 2013, Quay)

Civilian drone use is not the first instance where privacy and federalism have crossed paths. In 2006, a broad coalition of companies called for comprehensive federal consumer privacy law

that would preempt state legislation.39 In response, two prominent privacy scholars, Paul M. Schwartz and Patricia C.

Bellia, disagreed about the proper balance between federal and state governance of privacy. On the one hand, Schwartz argued that states can be “ important laboratories for innovations in information privacy law .” States have been the first to identify significant regulatory areas in privacy law, and have provided innovative approaches to those areas. For example, states were the first to regulate data security breaches , beginning with California’s Senate Bill 1386 (S.B. 1386) in 2002.41 Through diversity, states have offered simultaneous experimentation with different policies . In the data security area, states differ in the standards under which a company must share information about a data security breach. On the other hand, argued Bellia, state privacy laws often follow federal legislation, pointing to the “importance of federal leadership in information privacy problems.” State wiretap

statutes, for example, share the federal statutory core while varying across only a few details. A federal, or mixed

state and federal, approach to law enforcement drone use makes perfect sense. A federal law governing law enforcement drone use would follow in the well-trod—albeit, outdated—footsteps of the

Electronic Communications Privacy Act (ECPA).44 Like ECPA, federal legislation on law enforcement drone use could establish a statutory core to be shared by the states, or a statutory floor, permitting state deviation towards more protection. Additionally, because ECPA already establishes a familiar framework for warrants and court orders governing

law enforcement surveillance, a federal law enforcement drone statute need not wait on extensive state experimentation. The updates need not be drone-specific, and could cover location tracking, video surveillance, or use of biometric identification, or other new technologies, if these are the concerns raised by drone

surveillance. As noted, legislation governing video or photographic surveillance by civilian drone users will be far trickier. It will have to navigate the Scylla and Charybdis of privacy and the First Amendment. And if enacted federally, it will deviate from how privacy regulation has historically been divided between the federal government and the states.

Exts. GeneralStates solve drones better—more experience with local situationsKaminski 13 – Margot E. Kaminski is the Executive Director of the Information Society Project and a Research Scholar and Lecturer in Law at the Yale Law School. (“Drone Federalism: Civilian Drones and the Things They Carry,” California Law Review, The Circuit, Paper 8, May 2013, Quay)

Assuming these conditions are met, Congress should defer to states on privacy regulations governing civilian drone use for video and audio surveillance. States have experience regulating many of the kinds of privacy violations contemplated by those who fear drones, and state legislation permits experimentation with these regulations, subject to crucial feedback from courts on First-Amendment boundaries. Congress should therefore wait to enact regulation of civilian use of drones for information-gathering until more data emerges out of state experimentation. At the least, Congress should avoid preempting state

regulation in any drone privacy statute it does enact. A number of state laws raise questions similar to those likely to be raised by drone regulation. State wiretapping laws, Peeping Tom laws, video voyeurism laws, and paparazzi laws all currently regulate privacy-intrusive photography, videography, and sound recordings. These laws

vary in how they handle the scope of privacy protection against video and photographic intrusion. State wiretap laws, for example, vary in whether they require the consent of one party, or the consent of all parties. They vary in whether there must be a reasonable expectation of privacy in the conversation for a privacy violation to occur, and they vary in whether the act of recording must be surreptitious to be banned.56 Peeping Tom statutes criminalize peeping through a hole or other aperture into a person’s home. They are sparsely enacted, and relatively ineffective, because they require catching the Tom in the act.57 Video voyeurism statutes criminalize the viewing,

videotaping, or photographing of another without knowledge or consent, when done for the purpose of sexual arousal.58 Some of these statutes require establishing a reasonable expectation of privacy, and some require that the criminalized image be of a nude or partially nude subject. Paparazzi statutes ban paparazzi from using

special technologies to intrude on the personal life and personal spaces of celebrities.59 In handling these state statutes, many courts have shown a reluctance to find a reasonable expectation of privacy in public places. However, states could conceivably get around this reluctance if desired, through legislation . Presumably, states will also try to regulate the taking of photographs, video, or audio recordings from drones,

as Texas H.B. 912 currently proposes. Drone anti-surveillance laws thus resemble these state privacy statutes that have led courts to grapple with the appropriate balance between privacy and free speech. The state wiretap law cases discussed above demonstrate

that a wholesale ban on drone-based recordings would implicate a substantial First Amendment interest. A wholesale ban of drone videography would thus likely not be found constitutional, because it would ban an entire medium of expression. But as current state laws demonstrate that a number of narrower privacy protections may be societally acceptable and even necessary, these types of restrictions may be imported into state anti-drone-surveillance legislation. In the next section, I explore the various ways in which states might legislate to protect privacy implicated by drone use.

Less likely to get struck downKaminski 13 – Margot E. Kaminski is the Executive Director of the Information Society Project and a Research Scholar and Lecturer in Law at the Yale Law School. (“Drone Federalism: Civilian Drones and the Things They Carry,” California Law Review, The Circuit, Paper 8, May 2013, Quay)

Regulating law enforcement drone use poses few countervailing dangers from

legislating thoughtlessly or in haste; such legislation would implicate Fourth Amendment rights rather than First Amendment rights, so the worst case scenario is that such legislation might eventually be found by courts not to protect enough privacy. The more interesting and difficult privacy puzzle arises from drone use by private—not public—actors. Regulating civilian drone use will be treacherous, as such regulation potentially threatens First Amendment rights . Because of that

threat, civilian drone regulation may get overturned, as courts sort out the scope of those First Amendment rights. Regulating civilian drone use on the federal level thus risks being unconstitutional or, barring that, unstable . Several states are considering banning civilian drone photography, or more broadly, civilian drone use.16 The proposed Texas Privacy Act, H.B. 912, bans drone photography without the consent of the property owner on whose property the image is taken, and at the time of this Essay’s writing, has

passed the Texas House and is up for debate in the state Senate.17 Two proposed federal bills restrict the gathering of images and other information by civilians.18 One of these federal bills

can be read to preempt state regulation of drone flights between states. 19 This Essay argues that preemption of state drone regulation would be a mistake.

It costs lessKaminski 13 – Margot E. Kaminski is the Executive Director of the Information Society Project and a Research Scholar and Lecturer in Law at the Yale Law School. (“Drone Federalism: Civilian Drones and the Things They Carry,” California Law Review, The Circuit, Paper 8, May 2013, Quay)

The important question in privacy regulation of civilian drone use is thus whether this regulation should be enacted by the federal government, or by states. The tension between privacy and First Amendment freedom is unlikely to be resolved in one fell swoop by a federal statute; moreover, federal preemption will preclude state

experimentation. Federal legislation is also costlier and more difficult to enact , and risks getting overturned by courts concerned about First Amendment implications. Rather than attempt to get federal legislation right on the first try, and risk having it

rejected by First Amendment-protective courts, we should allow states to run through less costly iterations.

The counterplan solvesMatiteyahu 15 – Taly Matiteyahu is an Executive Staff Editor, COLUM. J. L. & SOC. PROBS., 2014-15. J.D. Candidate 2015, Columbia Law School. (“Drone Regulations and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy,” 48 Colum. J.L. & Soc. Probs. 265, Winter 2015, Quay)

In February 2012, President Barack Obama signed the FAA Modernization and Reform Act into law,

heralding the official introduction of unmanned aerial vehicles ("drones") into domestic airspace. The Act calls on the Federal Aviation Administration (FAA) to begin integrating drones into the national airspace system by 2015. n2 Drones are aircrafts that do not carry human operators and are capable of operating remotely or autonomously on a preprogrammed flight path. n3 They can be as small as an insect or the size of

a commercial airplane. n4 Drones can be equipped with high-power cameras, thermal scanners, license plate readers, [*267] moving target indicators, LADAR (laser

radar), LIDAR (light detection and ranging), and facial recognition software. Nonweaponized domestic uses for drones are boundless. They can be used for mapping, n12 crop dusting, n13 environmental protection, n14 wildlife

tracking, n15 delivering packages, n16 search and rescue missions, n17 and a host of other purposes. n18 The FAA predicts that 30,000 drones will fill domestic skies within ten years. As drones are introduced into American skies, they will likely change the landscape of national airspace. However, drones' benefits do not come without a cost. Legal scholars and

politicians have already voiced concerns indicating the perception that current safeguards for protecting individual privacy are insufficient , particularly from the use of drones by law enforcement. n20 This apprehension is compounded by scholars' perceptions that neither the FAA,

whose responsibility is to ensure safety and efficiency in national airspace, n21 nor any other regulatory body, is currently equipped to protect privacy interests. n22 In the meantime, some states are enacting legislation in an effort to regulate drone use and protect individual privacy. n23 As drones proliferate, individuals will look to state laws and the Fourth Amendment to provide protection against intrusions of privacy. The Fourth Amendment's reasonable expectation of privacy test, used to delineate the

bounds of Constitutional protection, will be central to determining the scope of permissible warrantless drone use by law enforcement. This Note considers how state drone statutes may interact with Fourth Amendment jurisprudence and inform contemporary reasonable expectations of privacy. Part II reviews Fourth Amendment precedents and applications of the reasonable expectation of privacy test in tracking cases and in cases where the Supreme Court distinguishes between the home, curtilage, and open fields. Part III provides a survey of state drone statutes currently in effect, their purposes, and their practical effects on [*269] the use of drones by the government and private parties.

n24 Part IV discusses how state drone statutes may inform the Supreme Court's understanding of what expectations of privacy are "reasonable" within an interpretive framework delineated by Orin S. Kerr's Four Models of Fourth Amendment Protections. n25 Finally,

Part V predicts that state drone statutes will influence the Court's current understanding of the reasonable expectation of privacy, whether explicitly or implicitly, as drones develop technologically and are regulated.

Exts. PrivacyStates can protect privacy threatened by dronesKaminski 13 – Margot E. Kaminski is the Executive Director of the Information Society Project and a Research Scholar and Lecturer in Law at the Yale Law School. (“Drone Federalism: Civilian Drones and the Things They Carry,” California Law Review, The Circuit, Paper 8, May 2013, Quay)

States should avoid banning an entire class of recording technologies. Instead, they might apply reasonable time, place, and manner regulations. For example, a state might decide that certain physical locations should not be subject to drone surveillance, or that such surveillance should be permitted only during certain times.

However, as discussed above, states might wish to include exceptions for matters of public interest or actions by public figures, and consider newsworthiness as a

defense.62 States could alternatively, or in addition, choose to target socially unacceptable behavior on the part of the recorder/drone user, by banning surreptitious use or requiring that drone users obtain consent from recorded parties. But as we have seen with the application of state wiretap laws to cellphone taping of police, focusing on consent alone can result in significant restrictions on First-Amendment-protected activities

if all parties being recorded refuse to consent for reasons that have nothing to do with privacy restrictions. Instead, just as some state wiretap laws target surreptitious or secret recording, state drone privacy laws could ban surreptitious recording by drones. Under this scheme,

if a person is openly recording you, even if they have not obtained your explicit consent, then there would be no privacy violation. State drone laws could

consider the superhuman nature of the technology being used. Some states have banned the use in certain situations of technology that is so enhanced that one has no idea one is being recorded in traditionally private spaces; the California paparazzi statute, for example, penalizes the use and attempted use of a visual or auditory enhancing device that captures “personal or familial activity” that could not otherwise have been accessed without a physical trespass. One proposed federal drone bill models its language after this

statute. States could protect acts from being recorded when the acts themselves are subject to a reasonable expectation of privacy. As mentioned above, a number of courts have recently found that there is no reasonable expectation of privacy in public spaces. Several courts however, have found that there can be a reasonable expectation of privacy in public; the Alabama Supreme Court found that a photograph of a woman’s underwear, even though taken in public, was still an invasion of privacy.68 The California Supreme Court has also recognized that a car crash victim could have an expectation of privacy in her conversations with a nurse and other rescuers, even though the crash took place in public.69 States could guide courts by legislatively dictating a reasonable expectation of privacy even in public spaces. The federal Video Voyeurism Prevention Act of 2004 (“VVPA”) demonstrates one such effort. The VVPA statutorily defines a reasonable expectation of privacy as including a reasonable person’s belief that a private area (genitalia)

would not be visible to the public, “regardless of whether that person is in a public or private place.”70 Although the Fourth Amendment does not yet recognize privacy expectations in a public place (although five Justices in United States v. Jones indicated that such an expectation exists when surveillance is pervasive),

state legislatures may be able to foster a competing recognition through statutes by defining circumstances in which people can have a reasonable expectation of privacy in public. A series of courts of appeals cases on video surveillance in the mid-1980s through the early 1990s may prove informative. These cases found Fourth Amendment protection from video surveillance of non-public places,72 and created heightened procedural hurdles for law enforcement use of video surveillance, because such

surveillance was hidden, intrusive, indiscriminate, and continuous. State privacy laws address whether surveillance is hidden by asking if recordings were surreptitious, and to some extent assume the intrusiveness of certain technologies (audio recording, photography, videography) compared to others (sketching a picture, for example, or retelling an overheard conversation from memory). But these laws generally fail to ask whether surveillance was indiscriminate—that is, whether it captured more than the

potentially newsworthy fact in its scope—and whether the surveillance was continuous. State drone surveillance laws could consider additionally addressing these two axes by penalizing indiscriminate and/or continuous recording, or including those features in a definitional determination that a reasonable expectation of privacy has been

violated. Thus state drone laws could vary according to whether they regulate the time and place of recordings; whether they require consent to record; whether they require surreptitious behavior on the part of the recorder/drone; whether they ban the use of enhancing technologies when recorders peer into traditionally private spaces; whether they require a reasonable expectation of privacy in the recorded act; and whether that reasonable expectation of privacy could be defined to exist within a public space or be implicated by indiscriminate and/or continuous recording.

Exts. Law EnforcementSolves law enforcementMatiteyahu 15 – Taly Matiteyahu is an Executive Staff Editor, COLUM. J. L. & SOC. PROBS., 2014-15. J.D. Candidate 2015, Columbia Law School. (“Drone Regulations and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy,” 48 Colum. J.L. & Soc. Probs. 265, Winter 2015, Quay)

In passing drone laws, states sought to protect individual privacy by limiting the use of drones by law enforcement agencies . n125 Generally, a "law enforcement agency" is defined as a government agency responsible for the prevention and detection of crime. The titles of state drone legislation reflect the goal of emancipating society from drones, including short titles such as the

"Freedom from Drone Surveillance Act" and the "Freedom from Unwarranted Surveillance Act." Statistics show that Americans are concerned about drone surveillance. In a 2012 poll, only 30% of voters "favor[ed] the use of unmanned drones for domestic surveillance."

Another 2012 poll showed that 42% of Americans would be "very concerned" and 22% would be "somewhat concerned" about their privacy if law enforcement agencies started

using unmanned drones with high-tech cameras. During an Illinois State Senate session, Illinois State

Senator Daniel Biss declared that Illinois' drone bill sought "to put in place a very common-sense set of regulations around [law enforcement agencies' use of unmanned aerial vehicles] so as to ensure that . . . privacy is not violated." n131 Biss drew on Katz's Fourth Amendment [*283] privacy test, remarking that "the people of Illinois have a reasonable expectation for privacy."

State restrictions are effectiveReid 14 – Melanie Reid is an Associate Professor of Law at the Lincoln Memorial University-Duncan School of Law. (“GROUNDING DRONES: BIG BROTHER'S TOOL BOX NEEDS REGULATION NOT ELIMINATION,” 20 Rich. J.L. & Tech. 9, Spring 2014, Quay)

Forty-five states have introduced legislation to protect privacy and limit drone use. These states seem to be singularly focused on law enforcement's use of drones and are not overly concerned about the privacy ramifications as drone use increases for private, commercial and recreational

purposes. Most of the proposed state legislation allows private citizens to bring a civil action against a government agency which uses a drone against them but does not place any restrictions on other private citizens who might use a drone for similar surveillance purposes. Many of the bills are currently pending;

twelve bills have died, been vetoed, or are pending for further study; twelve bills have passed and become law. Additionally, Indiana has passed a resolution calling for the creation of a committee to study the use of drones, n90 and Alaska has passed a resolution to create a task force to assist the FAA in creating

a safe place for the testing of drones and the development of adequate safety procedures for future drone use. Perhaps states are relying upon the common law torts of trespass, nuisance, invasion of privacy, stalking, and harassment to keep personal abuse in check. An individual who alleges another private individual has invaded his privacy through the use of a drone must prove that the defendant intruded, physically or otherwise, upon the plaintiff's solitude or seclusion or his private affairs or concerns and "the intrusion

would be highly offensive to a reasonable person." A plaintiff's nuisance claim would be based upon the right to use and enjoy land—it is not necessary to show that the interference by the drone actually occupied the owner's land (it could fly over adjoining

lands only) so long as the flight substantially and unreasonably interfered with the use and enjoyment of the land. While personal drone operators are left to their own devices, legislatures have given law enforcement strict guidelines. The overall trend of the state laws is to make the use of drones more restrictive than what the Supreme Court currently requires for aerial surveillance. States deem themselves

proactive by adopting legislation to limit drone flights and make the use of drones by law enforcement fall under requirements as if the Fourth Amendment applied to their actions. Most of the current or pending state laws do not allow the use of drones without some type of reasonable suspicion or probable cause.

Exts. Private ActorsStates have the authority to regulate commercial drone useHeverly 15 – Robert A. Heverly is an Associate Professor of Law at the Albany Law School. (“Game of Drones: The Uses and Potential Abuses of Unmanned Aerial Vehicles in the U.S. and Abroad: ARTICLE: THE STATE OF DRONES: STATE AUTHORITY TO REGULATE DRONES,” 8 Alb. Gov't L. Rev. 29, Quay)

Controls over private use raise greater concerns than those exercised over public use, which is squarely within the authority of the states . Some kinds of controls that states may wish to implement may be outside of their authority, preempted by the federal government's authority in this arena. Others would be better implemented through a harm based approach, by enacting laws that aim at the ultimate harm to be prevented rather

than at specific technologies. As Margot Kaminski has outlined, federal law does not currently preclude state laws that purport to regulate drone use in the privacy realm. That does not mean, however, that Congress could not enact laws preempting states from regulating in this area. To the extent authorized by statute, the FAA may also step into this

field. If this occurs, state attempts to control drone facilitated privacy violations may lose significant ground. If Congress or the FAA enact specific controls on drones and

privacy, state laws that regulate on that same topic are likely to be suspect. In contrast, state laws aimed more generally at protecting privacy have a greater chance of surviving a federal preemption challenge. The same "harm based" approach holds true for laws and regulations aimed at protecting those who hunt and fish from surveillance or harassment, another area in which states have already acted. The threat to those who hunt and fish is broader than just drone surveillance. Photographers with long telephoto lenses and activists who hide wirelessly operated or other remote cameras to capture hunting and fishing activities pose the same threat of surveillance as

drone cameras. It makes sense to attack the harm here and not the technology, and in so doing to avoid at least some of the problems of potential federal preemption that technology targeted laws present. Another area in which states have already acted is in prohibiting the weaponization of drones. There is no federal law at this time that would preempt state laws in this area, and the harm itself is not conducive to broader interpretation. In other words, the harm is making drones more dangerous. Unless individuals begin to weaponize other technologies, such as bicycles and automobiles, a more broadly written law is not necessary. It is possible, however, that this perceived danger is a chimera, a likely unfulfilled possibility feared primarily because of the military origins of drones. To the extent that this is true, such enactments add little value to the overall social welfare. They are, instead, reactionary capitulation to public fear, rather than a reaction to true factual developments. Building the record that such possibilities are more than remote should therefore be the required foundation for state laws banning such drone uses.

Solves private actorsMatiteyahu 15 – Taly Matiteyahu is an Executive Staff Editor, COLUM. J. L. & SOC. PROBS., 2014-15. J.D. Candidate 2015, Columbia Law School. (“Drone Regulations and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy,” 48 Colum. J.L. & Soc. Probs. 265, Winter 2015, Quay)

Of the bills currently in effect, three target the use of drones by private parties. Idaho's statute excludes "model flying airplanes or rockets . . . that are used purely for sport or recreational purposes" from the definition of "unmanned aircraft system," thus carving out some private drone use (provided the craft meet all

of the exception's other requirements). n134 Even so, the Idaho statute prohibits private parties from using drones "to photograph . . . an individual, without such individual's written consent, for the purposes of publishing or otherwise publicly disseminating such

photograph." These restrictions may raise First Amendment challenges, however, as they are so broad as to potentially prohibit "a news station from using a drone to gather information for their traffic report absent written consent of everyone on the road" or "prevent an aerial photographer from using a drone to take pictures of the Idaho Capitol Building or the Idaho Potato Museum for publication in her upcoming book if there happened to be individuals

caught in the frame." The Texas drone statute also restricts private use of drones by imposing a blanket ban on drone use and providing a lengthy list of

exceptions to the prohibition. The American Civil Liberties Union views Texas' statute as problematic because it provides "very few meaningful protections from drone surveillance by law enforcement." The bill's sponsor, Texas State Representative Lance Gooden, stated that the bill was designed to protect the privacy of ordinary Texans. The statute, for

example, prevents business owners from using drones to spy on competitors. Among the statutes currently in effect, Texas' is viewed as an outlier , and "critics worry it gives police too much leeway while trampling on the constitutional rights of private citizens and media outlets." Finally, Oregon's statute also regulates private drone use. Oregon's drone statute provides that "a person who owns or lawfully occupies real property in this state may bring an action against any person or public body that operates a drone that is flown at a height of less than 400 feet over the property" if the drone operator has previously flown the drone over the property at an altitude below 400 feet and the property owner notified the drone operator that he did not want the drone flown over the property at an altitude below 400 feet.

n144 Oregon's restriction on the private use of drones is thus much more narrowly tailored than Idaho's and Texas'

AT//No AuthorityStates have the authorityHeverly 15 – Robert A. Heverly is an Associate Professor of Law at the Albany Law School. (“Game of Drones: The Uses and Potential Abuses of Unmanned Aerial Vehicles in the U.S. and Abroad: ARTICLE: THE STATE OF DRONES: STATE AUTHORITY TO REGULATE DRONES,” 8 Alb. Gov't L. Rev. 29, Quay)

States have the authority to regulate their own affairs. Authority not provided to the federal government by the Constitution remains with the states. That authority allows states to set restrictions on actions taken on their behalf. So long as state laws and policies are not in conflict with Constitutional guarantees or relevant federal policies, states

can restrict or otherwise place limitations on the actions of those who act on their behalf. n155 For our purposes here, a number of states have provided for limited uses or imposed requirements on public uses of drones, especially for law enforcement purposes. These laws do not conflict with any federally recognized rights or laws, and as such, are within the power of the states to enact and enforce. They are matters of local control. Even the requirement that public drone operators have a state issued operator's license, after undergoing required training, is squarely within a state's authority to regulate its own affairs. n158 The larger question here, then, is whether

it is good policy for states to enact such restrictions. To the extent that such enactments are spurred out of immediate public and media reaction to the use of drones, short term restrictions on such use to allow for their study and the development of suitable rules makes sense. The moratorium is a well-established method that allows government to undertake

the development of good policy positions. Short term moratoria might be put to good use in studying both the practical effect of and public perception of drone use by government entities. Permanent restrictions, or restrictions established without review timeframes, provide less of a chance for review and revision. To the extent that drone restrictions are enacted in response to uncertainty as to the technology's potential for misuse, n159 further study seems warranted. Such concerns may be well founded, but the technology itself has not been in use for a sufficient period of time to be able to seriously gauge the true potential for use and abuse. A conservative approach to regulation as implemented through time-limited rules makes the most sense at this point in time.

1NC—Burden-SharingThe FAA and states could collaborate on property laws?Rule 15 – Troy A. Rule is an Associate Professor of Law at the Sandra Day O'Connor College of Law. (“Airspace in an Age of Drones,” 95 B.U.L. Rev. 155, January 2015, Quay)

However, the fact that the FAA has historically overseen aviation activities does not necessarily entitle it to regulate the whereabouts and activities of small, low-flying drones. As

one commentator has observed, the extraordinarily heavy federal involvement in aviation regulation has always been premised on the notion that "air travel is inherently interstate " and thus falls within federal jurisdiction under the Commerce Clause. Most flights of small domestic drones are not inherently interstate , staying well below 500 feet and covering less than a mile, and yet the FAA appears to be presently taking the position that its airspace jurisdiction above the United States reaches all the way down to the ground. Much of the recent media attention involving drones has focused on the FAA's efforts to enforce a 2007 policy notice providing

that "no person may operate a [drone] in the National Airspace System without [*199] specific authority." n204 Only "hobbyists" who fly their drones at heights of less than 400 feet and keep the devices

"within visual line-of-sight" are presently exempted from the FAA's purported policy. n205 Based on this policy notice, the FAA has mailed cease-and-desist letters to several citizens in recent years challenging their commercial uses of drones without certificates of waiver or authorization. n206 In most instances, the citizens targeted in these letters

appeared to have been flying drones well below the 500-foot navigable airspace line. The FAA's increasing attempts to assert airspace jurisdiction all the way down to the ground are

arguably inconsistent with existing law. n207 As mentioned above, the National Transportation Safety Board recently ruled that the FAA lacked regulatory authority to fine a citizen for flying a drone in non-navigable airspace for a

commercial purpose. n208 The Constitution expressly reserves broad police powers to the states under the Tenth Amendment, and one common justif ication for this reservation of state power is a belief that state and local officials tend to have a better sense of the particular needs and preferences of citizens where they live . Just as federal regulatory authority over national park lands largely ends

beyond the park exit sign, it seems reasonable and logical for the FAA's regulatory jurisdiction to essentially end at 500 feet – the lower boundary of the nation's public air travel area. Even if the FAA conceded that it possessed no regulatory jurisdiction over low-altitude drone flights, the agency could still retain significant authority over certain aspects of the drone industry. For instance, the FAA would retain regulatory power over flights of larger drones within navigable airspace. The FAA or some other federal

government entity would likewise have power to regulate small drones flying near and above federally controlled lands – areas such as national parks and navigable waters. The agency could also continue to regulate small drone activity near airports to the extent necessary to maintain aviation safety. And it would seem within the FAA's regulatory authority to adopt regulations preventing small drones from flying within 100 feet of any navigable

airspace line, so as to create a reasonable safety buffer between small drones and conventional aircraft. In addition, the FAA is seemingly well positioned to establish and enforce federal drone safety and performance standards. Existing federal statutes authorizing the National Highway Traffic Safety Administration to issue federal motor vehicle safety standards and regulations n216 generally enable auto manufacturers to produce and sell vehicles throughout the United States in compliance with identical federal specifications rather than a patchwork of state standards. For similar reasons, the FAA already issues federal standards for conventional aircraft. Given the FAA's

expertise in this area, it [*201] would make sense for the agency to undertake the task of formulating and enforcing safety and performance standards for small drones, even if such devices are not intended for use within navigable airspace.

Drones Industry Advantage

1NC—Drone Industry AdvantageStatus quo solves—new FAA regulationsMorgan 6/17 – David Morgan is a reporter for Reuters. (“FAA expects to clear U.S. commercial drones within a year,” Reuters, http://www.reuters.com/article/2015/06/17/us-usa-drones-congress-idUSKBN0OX1P020150617, June 17, 2015, Quay)

U.S. commercial drone operations could take flight on a large scale by this time

next year, as federal regulators finalize rules allowing widespread unmanned aerial system use by companies, according to congressional testimony on Wednesday. A senior Federal Aviation Administration official said the agency expects to finalize regulations within the next 12 months. Previous forecasts had anticipated rules by the end of 2016 or

the beginning of 2017. "The rule will be in place within a year," FAA Deputy Administrator Michael Whitaker said in testimony before the U.S. House of Representatives Oversight and Government Reform Committee.

"Hopefully before June 17, 2016," he added. Drone advocates expect unmanned aerial systems to transform a number of industries – from agriculture and energy production to real estate, news and entertainment, transportation and retailing. At the congressional hearing, a senior Amazon.com executive told lawmakers that the e-commerce retailer would be ready to begin delivering packages to customers via drones as soon as federal rules allow. “We’d like to begin delivering to our customers as soon as it’s approved," Misener said. “We will have (the technology) in place by the time any regulations are ready. We are working very quickly.” Amazon said its plans, which call for delivering packages to customers within 30 minutes, would require FAA rules to accommodate advanced drone technology envisioned by the company's

Prime Air operations. FAA regulations proposed in February are more restrictive - requiring drones to fly during daylight hours only and to remain within an operator's visual line of sight. FAA officials are in discussions with industry stakeholders including Amazon and Google Inc about crafting final regulations that could accommodate more sophisticated drone systems capable of flying autonomously over longer distances . Whitaker said in written testimony that advanced technology

standards are scheduled to be completed in 2016. The shortened FAA time-horizon for final rules follows a series of agency actions to accommodate commercial drones. FAA officials have been under pressure from lawmakers and industry lobbyists, who claim U.S. companies are losing billions in

potential savings and revenues while waiting for regulators to open the way for drones. The agency has also streamlined its process for exempting companies from a near-ban on commercial drone operations. Whitaker said the FAA is now allowing up to 50 companies a week to use drones as part of their businesses.

Alt causes—fear of commercial dronesDolesh 15 – Richard J. Dolesh is NRPA’s Vice President of Conservation and Parks. (“The Drones are Coming,” Parks & Recreation, http://www.parksandrecreation.org/2015/March/The-Drones-are-Coming/, March 1, 2015, Quay)

So what’s not to like about drones? Well, crashes, lost drones, operator errors, mechanical failures, privacy invasions and other undesirable consequences of inept or irresponsible drone flying, just to name a few reasons. Such outcomes are becoming an increasing concern of those responsible for public safety , not to mention the ever-present threat of a drone being used in a terrorist plot. There is already a compendium of hair-raising stories of near-misses or collisions

with drones including reports of drones flying too close to aircraft or in other highly inappropriate locations. Reports of drones flying within 50 feet of commercial aircraft at New York City airports make some believe that a collision with an airliner is not a matter of if, but when . Parks have not been exempt from problems created by irresponsibly piloted drones, including a number of high-profile incidents at

iconic national parks such as Zion and Grand Canyon. A widely reported incident occurred at Mount Rushmore National Park when a hobby drone was launched from a parking lot,

hovered over a crowd of 1,500 people gathered for an evening program at the monument, and then flew over and around the four sculpted heads before being flown back to the parking lot.

Other public complaints about inappropriate or unauthorized use of drones have been received by the National Park Service (NPS), including harassment of wildlife, noise at iconic scenic viewing points and drone crashes in parks . Jeffrey Olson, public affairs officer for NPS, says that the prohibition on unmanned aircraft in national parks issued by Director Jon Jarvis

in a policy memo last June was “basically a timeout.” The ban on new drone flying was prompted by public complaints concerning incidents similar to what happened at Mount Rushmore. NPS management policies call for careful consideration of any “new form of

recreation,” which drone flying clearly is, and the impact of this activity has not been evaluated. The administrative action will trigger a review of existing and proposed policies and will lead to a Notice of

Proposed Regulation, a process that is likely to take about 18 months, according to Olson. Incidents from rogue operators or inexperienced pilots are not the only concern. Privacy advocates, industrial and national security experts, and law enforcement officials are very concerned about the potential use of drones in terrorist plots or other criminal activity. Drones are starting to be a concern at virtually every large-scale public event that someone might want to observe or photograph, such as a drone that buzzed Chicago Park District’s Lollapalooza Festival last year. The Federal Aviation Authority (FAA) even went so far as to declare the 2015 Super

Bowl a “No Drone Zone,” and issued an advisory to enjoy the game, but “leave your drone at home.” Concerns about drones range from the relatively minor annoyance of crashes in open areas to the very deep concern regarding bad behavior by pilots whose ignorance or dangerous

operation of drones can literally endanger people’s lives. Many drone enthusiasts are concerned about rogue operators giving all operators a black eye . “The rogues are outliers,” according to Jon Resnick, policy and marketing representative for DJI. Christopher Vo, president of the DC

Area Drone User Group, says, “There are a lot of people who are interested in flying safely and who just want to find places to fly.” Nonetheless, there are still many concerns about drones from a variety of quarters, especially park agencies that many expect

to be on the front lines of managing public flying of hobby drones. Vo agrees that crashes and uncontrolled descents are an issue. “Everyone who gets their first drone and takes it out to fly will crash — that’s almost a guarantee ,” he says. “But it is not necessarily a problem, just a reality. The solution is user education about where it is safe to fly and to not fly near buildings or over private property.” Technology improvements, says Vo, such as inexpensive onboard infrared sensors and downward-facing cameras will help measure changes in speed and assist automatic hold, takeoff and landing. “It is also why the industry is trying to make drones

lighter, stronger and safer,” he says. Vo points out that how a drone is flown is a factor in how safe it is. There are two

principal methods of piloting drones, First-Person-View (FPV) and Line-of-Sight flying. In FPV flight, the operator flies the aircraft through the lens of an onboard camera. Some think this is a largely unsafe way to fly, and that hobby drones should be only be flown by line-of-sight with a spotter present at all times the drone is in operation.

A strong drone industry is inevitable—public support is changing and opposition will be overcomeQuinnell 15 – Rich Quinnell has been covering electronics technology for more than 15 years. Prior to becoming a technical journalist he had spent more than a decade as an embedded systems designer and engineering project manager for companies such as Matrix Imaging, Cooper LaserSonics, and the Johns Hopkins University's Applied Physics Laboratory (JHU/APL). He has degrees in electrical engineering and applied physics, with additional graduate work in communications, computer design, and quantum electronics. (“Investors Hot on Drones,” EE Times, http://www.eetimes.com/document.asp?doc_id=1325588, February 6, 2015, Quay)

A common view of unmanned aerial vehicles (UAVs), known as drones, seems to center on their use as weapons, invaders of privacy, or annoying (to others) toys. But despite such negative images , drones are proving themselves

invaluable in an increasing number of applications. This, in turn, is gathering investor interest , turning drones into a hot prospect for 2015 . Unlike traditional radio-controlled (RC) hobbyist aircraft, UAVs exercise a great deal of autonomy in their operation even though they might have a (remote) human

pilot. Sensors and onboard computing, for instance, automatically stabilize the UAV's flight in the presence of wind and other perturbations, eliminating the need for flying skills. Some UAVs are even able to follow pre-defined flight plans or automatically return to their launch point without additional human intervention at all. UAVs are to RC aircraft what CNC machines are to manual lathes; a robotic version. And

robots designs are proliferating. In the last year we have seen robots for farming, search and rescue, and law enforcement as well as a continuing stream of industrial robots. UAVs are simply another genre in the robotics field, and one that is gathering increasing interest. In a recent webcast on Investing in Robots by Robotics Business Review, UAVs – drones – were a

center of discussion. On online survey conducted among participants had drones emerge as the top investment idea for 2015. More than 40% of respondents expressed investment interest in drones , well ahead of consumer, industrial, and medical robotics.

Commercial applications of drones are responsible for much of the interest.

According to venture capital firm Foundry Group founder Brad Feld, speaking at the webinar, "drones are at the sweet spot" in an ongoing transfer of technology from military to commercial purposes. He pointed out that in the last 24 months commercial drones have undergone dramatic evolution. Many of the present commercial applications for drones are echoes of their military duties. Drones are being used for surveying and mapmaking, in situation assessment in disaster relief operations, wildfires, and the like, and for search-and-rescue

of missing persons in wilderness areas. But other uses are also appearing. Both Google and Amazon have been experimenting with the use of drones for rapid delivery of goods, BP is using drones for oil pipeline inspection, and drones are helping farmers

monitor vast acres of cropland as well as assess growth characteristics so as to better target fertilizing and watering efforts. The operation of drones often falls under the jurisdiction of governmental agencies such as the FAA,

which seek to control the shared use of airspace. And abuses of drones have stirred up a backlash of public opinion against them, resulting in restrictions that could throttle market growth. These issues are challenges that the nascent drone industry will need to overcome, but there is hope. Agencies such as the Small UAV Coalition and the Association of

Unmanned Vehicle Systems International (AUVSI) are providing public relations and legislative support to the industry , seeking to ensure that appropriate regulations get formulated. Meanwhile, commercial drone developers are beginning to abound. Clicking on the image above will take you to a slideshow of representative drones and their applications at work in the skies today.

Exts. Status Quo SolvesNew FAA regulations solve the affJansen 15 – Bart Jansen covers transportation primarily at the Federal Aviation Administration, the Transportation Security Administration, the National Transportation Safety Board and Congress. (“FAA unveils drone rules; Obama orders policy for agencies,” USA Today, http://www.usatoday.com/story/news/2015/02/15/faa-drone-rule/23440469/, February 16, 2015, Quay)

The Federal Aviation Administration released Sunday its long-awaited proposal for governing small commercial drones, setting a plan for remote-controlled aircraft to share the skies

with passenger planes. The FAA proposal would allow drones weighing up to 55 pounds to fly within sight of their remote pilots during daylight hours. The aircraft must stay below 500 feet in

the air and fly less than 100 mph. People flying drones would need to be at least 17 years old, pass an

aeronautics test and be vetted by the Transportation Security Administration, but a certificate wouldn't require the flight hours or medical rating of a private pilot's license. " We have tried to be flexible in writing these rules," FAA Administrator Michael

Huerta said. "We want to maintain today's outstanding level of aviation safety without placing an undue regulatory burden on an emerging industry ." The FAA asked for 60 days of public comment on its proposal for commercial drones, but industry experts expect the analysis of comments could take 18 months or longer before the rules are completed. In another action Sunday,

President Obama signed a presidential memorandum governing how federal agencies will use drones of all sizes. The memo, which has the same legal effect as an executive order,

requires agencies to publish within one year how to access their policies about drones, particularly about the collection, retention and dissemination of information. The goal is to ensure that uses don't violate the First Amendment or discriminate against people based on ethnicity, race, gender, religion or sexual orientation. And the Commerce Department's National Telecommunications and Information Administration will begin developing a framework for privacy and transparency in commercial use of drones, which the administration hopes trade groups will ultimately adopt. While surveillance of the southern border of the United States is one of the most publicized federal uses of drones, the

aircraft are expected to be deployed for a variety of other purposes. Drones "are a potentially transformative technology in diverse fields such as agriculture, law enforcement, coastal security, military training, search and rescue, first responder medical support, critical infrastructure

inspection and many others," according to a White House statement. "The administration is committed to promoting the responsible use of this technology, strengthening privacy safeguards and ensuring full protection of civil liberties ." The FAA proposal and the presidential memo represent the latest progress in integrating drones into U.S. airspace.

Status quo solves—new research partnershipDillow 15 – Clay Dillow has been contributing to Fortune since 2013, writing frequently about technology, aerospace, and defense. (“FAA's relaxed drone rules could mean big changes for industry,” Fortune, http://fortune.com/2015/05/08/faa-drone-rules/, May 8, 2015, Quay)

Rumours that the Federal Aviation Administration (FAA) may relax its restrictions on commercial drones that fly outside of the operator’s line of sight received the official stamp of credibility at the Association for Unmanned Vehicle Systems International’s annual trade show.

Speaking to reporters and industry representatives at the event, FAA chief Michael Huerta signaled the agency’s openness to approving beyond visual line of sight (BVLOS)

operations and announced a couple of research projects aimed at demonstrating

their safety. The agency will take part in three new research projects with

industry partners in the months ahead. Two of the projects will be aimed at better characterizing BVLOS operations, demonstrating the technologies underpinning such flights while also

establishing safety and performance data the agency can integrate into its rule-making process. Such drone operations are currently prohibited under the commercial drone rules unveiled by the FAA in February and in each of the so-called Section 333 exemptions the agency has

granted to companies on a case-by-case basis authorizing them to fly drones commercially. The news is a significant sign from the FAA, which has been increasingly (yet cautiously) working with companies and industry groups to provide drone regulations the industry can live with. BVLOS operations have been something of a sticking point thus far. Industry groups contend that companies can’t fully unlock the real economic benefits drones impart—or compete with more permissive regulatory environments overseas—without the ability to operate beyond visual line of sight. The Air Line Pilots Association currently opposes such operations, deeming them unnecessarily risky. In the past, Amazon has been particularly vocal in its support of integrating BVLOS operations into the FAA’s general commercial drone rules. A patent application published April 30 details the company’s plans for drone delivery, which would require operators—and eventually autonomous piloting software—to dispatch drones over long distances to

deposit parcels. But the research projects and partners selected by the FAA are indicative of the much more realistic—and arguably more important—impact drones will have on the industry in the near term. The FAA has granted North Carolina-based PrecisionHawk, a manufacturer of fixed-wing platforms, permission to conduct research on BVLOS precision agriculture operations. BNSF railroad will research ways that BVLOS drone use can improve the way the transportation giant inspects and manages its rail infrastructure and rolling stock. (A third research project will allow CNN to explore news-gathering methods but will not explore

BVLOS operations.) These kinds of applications—such as infrastructure inspection, precision agriculture and wide-area surveillance—are the real, or at least immediate,

future of commercial BVLOS drones. The industry remains worried that if the FAA fails to open up its skies to BLVOS commercial opportunities, U.S. companies could be left behind. “BVLOS technology has already matured to the point that BVLOS operations are now permitted in some other countries such as the Czech Republic, France, Poland, Sweden and Norway where BVLOS operations have been conducted for years with high levels of safety,” the Small UAV Coalition, an industry lobby backed by such companies as Google, Amazon, and PrecisionHawk wrote in a recent letter to FAA Administrator Huerta. These research partnerships don’t come with any funding from the FAA, but they do allow PrecisionHawk and BNSF Railroad to gather data and prove to the FAA that BVLOS operations can be conducted safely and in ways that impart a meaningful economic

impact. If they can do so, legal BVLOS operations may not be so far in following. “We anticipate receiving valuable data from each of these trials that could result in FAA-approved operations in the next few years,” Huerta said in his address at AUVSI, which is a far cry from the hard “no” companies received from the FAA up until now.

Exts. Non-UniqueThe public support drones—pollsUSN 12 – US News. (“Poll: Americans OK with some domestic drones -- but not to catch speeders,” http://usnews.nbcnews.com/_news/2012/06/13/12205763-poll-americans-ok-with-some-domestic-drones-but-not-to-catch-speeders?lite, June 13, 2012, Quay)

Americans overwhelmingly support the use of drones for patrolling U.S. borders, tracking down criminals and aiding search-and-rescue missions, but they don’t want the unmanned craft used to issue speeding tickets, according to a poll. The

Monmouth University Polling Institute of New Jersey said it tested the four scenarios in anticipation of a national push

that, according to estimates from the Federal Aviation Administration, could see up to 30,000 drones patrolling U.S. skies within a decade. The FAA, under orders from Congress in a bill signed into

law Feb. 14 by President Barack Obama, is expediting the expansion of domestic drone use. And that’s OK with most Americans , the poll found . “Americans clearly support using drone technology in special circumstances, but they are a bit leery of more routine use by local law enforcement agencies,” Patrick Murray, director of the Monmouth University Polling Institute, said in a statement. The FAA issued 61 drone authorizations between November 2006 and June 30, 2011, including 13 for local police agencies and one for a state police agency. About 20 went to colleges and universities and others went to federal agencies. The Department of Homeland Security, through the Federal Emergency Management Agency, in 2012 offered about $830 million in grants to states and cities for emergency preparedness.

Drones could be funded under several of its programs. The Monmouth University poll of 1,708 people called

June 4-6 has a margin of error of 2.4 percent, the Institute said. Its chief findings: More than half of Americans, 56 percent, had read “some” or a “great deal” about the U.S. military use of drones. The rest, about 44 percent, read “just a little or none at all.” About two out of three Americans, or 67 percent, oppose the use of drones to issue speeding tickets. About 23 percent

support it. 64 percent support the use of drones to control illegal immigration on

the nation’s borders. 80 percent support the use of drones to help with search and rescue missions. 67 percent support the use of drones to track down runaway criminals. 64 percent are “very concerned” or “somewhat concerned” about their privacy if U.S. law enforcement uses drones with high-tech cameras.

Exts. Alt CausesThe public is scared of civilian drones, not federal drones—the plan can’t solve thatAP 13 – The Associated Press. (“Looking to break into private market, drone industry worries about backlash,” The Daily News, http://www.nydailynews.com/news/national/drone-industry-worries-privacy-backlash-article-1.1302461, March 29, 2013, Quay)

With military budgets shrinking, drone makers have been counting on the civilian market to spur the industry's growth. But there's an ironic threat to that hope: Success on the battlefield may contain the seeds of trouble for the more benign uses of drones at home. The civilian unmanned aircraft industry worries that it will be grounded before it can really take off because of fear among the public that the technology will be misused . Also problematic is a delay in the issuance of government safety regulations that are needed before drones can gain broad access to U.S.

skies. Some companies that make drones or supply support equipment and services say the uncertainty has caused them to put U.S. expansion plans on hold , and they are looking overseas for new markets. "Our lack of success in educating the public about unmanned aircraft is coming back to bite us," said Robert Fitzgerald, CEO of The BOSH

Group of Newport News, Va., which provides support services to drone users. "The U.S. has been at the lead of this technology a long time," he said. "If our government holds back this technology, there's the freedom to move elsewhere ... and all of a sudden these things will be flying everywhere else and competing with us." Since January, drone-related legislation has been introduced in more than 30 states, largely in response to privacy concerns. Many of the bills are focused on preventing police from using drones for broad public surveillance, as well as targeting individuals for surveillance without sufficient grounds to believe they were involved in crimes. Law enforcement is expected to be one of the bigger initial markets for civilian drones. Last month, the FBI used drones to maintain continuous surveillance of a bunker in Alabama where a 5-year-old boy was being held hostage. In Virginia, the state General Assembly passed a bill that would place a two-year moratorium on the use of drones by state and local law enforcement. The measure is supported by groups as varied as the American Civil Liberties Union on the left and the Virginia Tea Party Patriots Federation on the right. Gov. Bob McDonnell is proposing amendments that would retain the broad ban on spy drones but allow specific exemptions when lives are in danger, such as for search-and rescue operations. The legislature reconvenes on April 3 to consider the amendments. "Any legislation that restricts the use of this kind of capability to serve the public is putting the public at risk," said Steve Gitlin, vice president of AeroVironment, a leading maker of smaller drones, including some no bigger than a hummingbird Seattle abandoned its drone program after community protests in February. The city's police department had purchased two drones through a federal grant without consulting the city council.

Drones "clearly have so much potential for saving lives, and it's a darn shame we're having

to go through this right now," said Stephen Ingley, executive director of the Airborne Law Enforcement Association. "It's frustrating." In some states economic concerns have trumped public unease. In Oklahoma, an anti- drone bill was shelved at the request of Republican Gov. Mary Fallin, who was concerned it might hinder growth of the state's drone industry. The North Dakota state Senate killed a drone bill in part because of concern that it might impede the state's chances of being selected by the Federal Aviation Administration as one of six national drone test sites, which could generate local jobs. A bill that would have limited the ability of state and local governments to use drones died in the Washington legislature. The measure was opposed by The Boeing Co., which employs more than 80,000 workers in the state and which has a subsidiary, Insitu, that's a leading military

drone manufacturer. Although the Supreme Court has not dealt directly with drones, it has OK'd aerial surveillance without warrants in drug cases in which officers in a plane or helicopter spotted marijuana plants growing on a suspect's property. But in a case involving the use of ground-based equipment, the court said police generally need a warrant before using a thermal imaging device to detect hot spots in a home that might indicate that marijuana plants are being grown there. In Congress, Rep. Ed Markey, D-Mass., co-chairman of the House's privacy caucus, has introduced a bill that prohibits the Federal Aviation Administration from issuing drone licenses unless the applicant provides a statement explaining who will operate the drone, where it will be flown, what kind of data will be collected, how the data will be used, whether the information will be sold to third parties and the period for which the information will be retained. Sentiment for curbing domestic drone use has brought the left and right together perhaps more than any other recent

issue. "The thought of government drones buzzing overhead and constantly monitoring the activities of law-abiding citizens runs contrary to the notion of what it

means to live in a free society," Sen. Charles Grassley, R-Iowa, said at a recent hearing of the Senate Judiciary

Committee. Privacy advocates acknowledge the many good uses of drones. In Mesa County, Colo., for example, an annual landfill survey using manned aircraft cost about $10,000. The county recently performed the

same survey using a drone for about $200. But drones' virtues can also make them dangerous , they say. Their low cost and ease of use may encourage police and

others to conduct the kind of continuous or intrusive surveillance that might otherwise be impractical. Drones can be equipped with high-powered cameras and listening devices, and infrared cameras that can see people in the dark. "High-rise buildings, security fences or even the walls of a building are not barriers to

increasingly common drone technology," Amie Stepanovich, director of the Electronic Privacy Information Council's

surveillance project, told the Senate panel. Civilian drone use is limited to government agencies and public universities that have received a few hundred permits from the FAA. A law passed by Congress last year requires the FAA to open U.S. skies to widespread drone flights by 2015, but the agency is behind schedule and it's doubtful it will meet that deadline. Lawmakers and industry officials have complained for years about the FAA's slow progress. The FAA estimates that within five years of gaining broader access about 7,500 civilian drones will

be in use. Sen. Rand Paul, R-Ky., recently drew attention to the domestic use of drones when he staged a Senate filibuster, demanding to know whether the president has authority to use weaponized drones to kill Americans on American soil. The White House said no, if the person isn't engaged in combat. But industry officials worry that the episode could temporarily set back civilian drone use . "The opposition has become very loud," said Gitlin of AeroVironment, "but we are confident that over time the benefits of these solutions ( drones) are going to far outweigh the concerns, and they'll become part of normal life in the future."

Privacy Advantage

1NC—Privacy AdvantageDrone surveillance doesn’t violate the Fourth AmendmentReid 14 – Melanie Reid is an Associate Professor of Law at the Lincoln Memorial University-Duncan School of Law. (“GROUNDING DRONES: BIG BROTHER'S TOOL BOX NEEDS REGULATION NOT ELIMINATION,” 20 Rich. J.L. & Tech. 9, Spring 2014, Quay)

The use of drones by law enforcement does not trigger Fourth Amendment protections . Drone surveillance does not constitute a trespass nor does it violate one's reasonable expectation of privacy. As a society,

we have begun to accept a diminished expectation of privacy. The real question becomes one of reasonableness

and whether the use of drones is deemed a reasonable, acceptable law enforcement investigatory tool without requiring a warrant. Most reasonable people, if

asked, would deem it acceptable to allow the Environmental Protection Agency (EPA) to place cameras in areas where companies are known to dump toxic chemicals in order to catch the violators. Most reasonable people, if asked, would likely deem it acceptable and prudent for the EPA to place mobile cameras along sections of a polluted river to monitor for illegal dumping. Is it then logical to assume it acceptable and

prudent for the EPA to utilize drones equipped with cameras to monitor the river for illegal dumping? Drones equipped with a type of mobile camera are used by the Forest Service to monitor for forest fires. Should drone film footage

be admissible as evidence at a criminal trial if the drone captures an arsonist starting a forest fire? Ditto when a drone captures images of a suspected marijuana field? Society appears to be comfortable with cameras in public areas. After the Boston Marathon bombing in April 2013, law enforcement obtained photographs from store surveillance cameras in order to identify the Boston bomber. Rather than public outrage at the excessive use of surveillance cameras for law enforcement purposes, the public demanded that more be done by law enforcement. There was strong public interest in catching the bombing suspects. In cities such as Washington D.C. and New York City, cameras are everywhere. Google

Earth and satellite technology have become commonplace. Drones equipped with cameras are simply the latest in surveillance technology. The public is not as concerned about government surveillance in public areas as it once was.

No impact—no reasonable expectation of privacy when drones are surveilling youReid 14 – Melanie Reid is an Associate Professor of Law at the Lincoln Memorial University-Duncan School of Law. (“GROUNDING DRONES: BIG BROTHER'S TOOL BOX NEEDS REGULATION NOT ELIMINATION,” 20 Rich. J.L. & Tech. 9, Spring 2014, Quay)

If state and federal legislators are successful and remain on a determined course to restrict application of drones, drone use may be severely limited, similar to what took place after

the court decision on thermal imaging. After the Kyllo decision in which the Court held that thermal imaging constituted a search under the Fourth Amendment, law enforcement was no longer able to use the technology to assist in building sufficient probable cause for a search warrant.

Admittedly, thermal imaging allows law enforcement the ability to collect intelligence within private dwellings, i.e., locations where the owner has a reasonable expectation of

privacy. Drone surveillance collects intelligence in public areas where there is no such expectation of privacy. Law enforcement needs a variety of investigatory tools that can be used without a warrant in order to gather enough facts for probable cause to justify

search and arrest warrants. If government becomes significantly limited in its ability to collect information in a reasonable and impartial manner, the ability to investigate a complaint and

determine if a crime has been committed will be hindered. Drone use is a reasonable, non-intrusive technique and should be one of those investigatory tools available to law enforcement agencies. Public safety requires that law enforcement have the ability to leverage every reasonable investigatory tool at its disposal to uphold the law and bring criminals to justice. Some techniques which are intrusive and infringe on privacy issues need to be closely monitored and regulated.

1. No solvency — states are developing nano-drones that can take DNA samples are leave tracking devices in your skin.

Reid 14 — Melanie Reid, Associate Professor of Law at Lincoln Memorial University Duncan School of Law, former U.S. Department of Justice trial attorney, 2014 (“Grounding Drones: Big Brother ’s Tool Box Needs Regulation Not Elimination,” January, Available Online at http://works.bepress.com/cgi/viewcontent.cgi?article=1017&context=melanie_reid, Accessed on 06-29-15)Law enforcement, in particular, has caught on to the drone craze. The Miami Police Department in Florida has drones—two Honeywell aircraft to fly no higher than 400 feet over the everglades. The U.S. Customs and Border Patrol (CBP) currently operates ten Predator drones and hopes to expand their number of drones to twenty-four by 2016. CBP drones patrol the southern border, and the Department of Defense has sent drones into Mexico to gather information about major drug traffickers. Two “nanodrones” are currently in production and garnering interest. The hummingbird drone “ navigates by changing the angle and shape of its paper-thin wings —which beat twenty to forty times per second—and can hover in place for up to 11 minutes.” “It is also small enough to fly through windows or other small openings , strong enough to carry a microphone or camera, and stable enough to maintain a highly controlled hover, even in gusts of wind.” The mosquito drone can be remotely controlled and is equipped with a camera and a microphone. Once it lands, it can take a DNA sample or leave an RFID tracking device under the skin. Both the Federal Bureau of Investigation (FBI) and Drug Enforcement Administration (DEA) have used Predator drones inside the United States. FBI Director Robert Mueller commented to Congress that drones were “very seldom used” by his agents but that he was aware of at least three drones in FBI possession as of 2011. The police department in Mesa County, Colorado operates its Draganflyer drones in their county. Police in Arlington, Texas used drones to assist with security during the Super Bowl in February 2011 and also for “’training and evaluation’ purposes in unpopulated areas.” The Texas Department of Public Safety used a bird-sized “Wasp” aircraft to conduct aerial surveillance during the execution of a search warrant. The city of Ogden, Utah, sought FAA permission in 2011 to deploy an unmanned blimp for surveillance and crime prevention.

National Guard units around the country operate drones to train for their use overseas and the United States Forest Service has been known to use drones to fly over national parks.

2. Security implications outweigh privacy ones — they control privacy choices. Bambauer 13 — Associate professor of law at the University of Arizona, 2013 (“SYMPOSIUM ON CYBERCRIME: PRIVACY VERSUS SECURITY, Summer, Available Online at Subscribing Institutions via LexisNexis, Accessed on 06-29-15)Security failings should be penalized more readily and more heavily than privacy ones, both because there are no competing moral claims to resolve and because security flaws make all parties worse off. And, in 2002 and 2003, hackers penetrated Acxiom's computers, accessing records on millions of American consumers. Privacy At base, privacy issues are arguments about values . Scholars and courts disagree about virtually everything: the theoretical bases and contours of privacy rights; the relative merits of free-expression rights versus privacy; the risks posed by de-identified data; the virtues of a "right to be forgotten"; and the benefits of ad-supported media versus Internet users' interests in not being tracked online. Security implements privacy's choices . Security failures could be evaluated under strict liability (firms bear the entire cost of the harm their insecurity creates), under a negligence standard (firms only bear costs when they have failed to meet some criterion for security), or both (such as strict liability for data leaks and negligence for hacking).

3. Alt cause — private sector drones violate privacy at a higher level than the Federal Governments.

Schlag 13 — Chris Schlag, J.D. (Juris Doctor) from the University Of Pittsburgh School Of Law, additional degrees in Environmental Health and Management from Colorado State and Columbia State University, 2013 (“Journal of Technology Law & Policy,” University of Pittsburgh Journal of Technology Law and Policy, Available Online via Subscribing Institutions at EBSCOhost, Accessed on 06-21-15)Domestic drone use is not limited to the public sphere. Many privately owned companies already use or have expressed interest in obtaining drones for security, loss prevention, and other various purposes. For example, Google currently uses drones to obtain map data, build GPS databases, and develop Internet-based street view maps. Multiple commercial media agencies have also tried to acquire drones to collect

private information, video images, and pictures of celebrities. Private detective agencies, lawyers, bail bondsman, insurance companies, and media groups such as National Geographic, have all staked a claim in the development of affordable drone technology. This is due to the enhanced imaging capabilities, affordable surveillance options, GPS tracking, and targeting of drones, which would allow for the collection of information useful to these trades in a relatively inconspicuous way. While presently, domestic drone use is seen as inconsequential because the technology is relatively unfamiliar and infrequently used, domestic drone use is projected to drastically increase in upcoming years . The drone industry is currently a $ 6 billion industry and is expected to double in the next 10 years. In February 2012, Congress enacted the FAA Modernization and Reform Act, which specifically calls for the acceleration and integration of drones into United States national airspace by 2015. As a result of the FAA's initiative under the Act and the significant push from federal and state agencies to use drones domestically, the FAA is expected to approve an additional 30,000 licenses for domestic drone operation by 2020.

4. Drones are good — they help fight crime, conduct weather research, storm monitoring, and serve as helpful tools to citizens.

Reid 14 — Melanie Reid, Associate Professor of Law at Lincoln Memorial University Duncan School of Law, former U.S. Department of Justice trial attorney, 2014 (“Grounding Drones: Big Brother ’s Tool Box Needs Regulation Not Elimination,” January, Available Online at http://works.bepress.com/cgi/viewcontent.cgi?article=1017&context=melanie_reid, Accessed on 06-29-15)One of the reasons why domestic drones have become so popular is because they serve a variety of purposes for a variety of people. Drones are being used to inspect pipelines, survey and monitor crops, monitor storm damage and flooding, monitor wildlife populations and track poachers, count sea lions in Alaska, monitor drug trafficking between the United States and Mexico borders, monitor high crime neighborhoods during drug investigations, monitor traffic, monitor farms for cruelty to animals, assist realtors in marketing real estate, and conduct weather and environmental research. Drones not only assist Hollywood film makers find cost effective ways to film scenes but also assist first responders in search and rescue missions and during or after natural or man-made disasters. Drones also assist oil and gas companies to inspect rigs and pipelines. The Darwin Aerospace laboratory in San Francisco has even designed the Burrito Bomber, the world’s first airborne Mexican food delivery drone, which would allow customers to have food parachuted to their doorsteps.

5. No uniqueness — drones are, in fact, being regulated in the status quo.

Reid 14 — Melanie Reid, Associate Professor of Law at Lincoln Memorial University Duncan School of Law, former U.S. Department of Justice trial attorney, 2014 (“Grounding Drones: Big Brother ’s Tool Box Needs Regulation Not Elimination,” January, Available Online at http://works.bepress.com/cgi/viewcontent.cgi?article=1017&context=melanie_reid, Accessed on 06-29-15)Forty-five states have introduced legislation to protect privacy and limit drone use . These states seem to be singularly focused on law enforcement’s use of drones and are not overly concerned about the privacy ramifications as drone use increases for private, commercial and recreational purposes. Most of the proposed state legislation allows private citizens to bring a civil action against a government agency which uses a drone against them but does not place any restrictions on other private citizens who might use a drone for similar surveillance purposes. Many of the bills are currently pending; twelve bills have died, been vetoed, or are pending for further study; twelve bills have passed and become law . Additionally, Indiana has passed a resolution calling for the creation of a committee to study the use of drones, and Alaska has passed a resolution to create a task force to assist the FAA in creating a safe place for the testing of drones and the development of adequate safety procedures for future drone use. Perhaps states are relying upon the common law torts of trespass, nuisance, invasion of privacy, stalking, and harassment to keep personal abuse in check. An individual who alleges another private individual has invaded his privacy through the use of a drone must prove that the defendant intruded, physically or otherwise, upon the plaintiff’s solitude or seclusion or his private affairs or concerns and “the intrusion would be highly offensive to a reasonable person.” A plaintiff’s nuisance claim would be based upon the right to use and enjoy land—it is not necessary to show that the interference by the drone actually occupied the owner’s land (it could fly over adjoining lands only) so long as the flight substantially and unreasonably interfered with the use and enjoyment of the land.

6. Turn — Too much of an expectation of privacy leads to overregulation of surveillance.

Simmons 13 — Ric Simmons, Professor of Law, Mortiz College of Law at Ohio State University, 2013 (“Privacy, Security, and Human Dignity In The Digital Age: Ending The Zero-Sum Game: How To Increase The Productivity Of The Fourth Amendment, Spring, Available Online at Subscribing Institutions via LexisNexis, Harvard Journal of Law & Public Policy (36 Harv. J.L. & Pub. Pol'y 549), Accessed online 06-28-15)

First, advances in technology can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens—that is, it is possible to increase the output without increasing the cost. Because the Court was analyzing this case for the purposes of the Fourth Amendment, Justice Alito's concurrence in the judgment stated this issue in terms of the Katz test: Did the continuous monitoring of the defendant's vehicle violate an expectation of privacy that society is prepared to recognize as reasonable? Accordingly, the privacy cost of using a drug-sniffing dog is: C P (drug dog sniff) + (false positive rate)*C P (physical search) + (correct positive rate)* C P (physical search) To measure the overall productivity of binary searches, we also need to determine the administrative cost of the surveillance and, on the other side of the equation, the expected benefits of the surveillance. In short, society's expectation of privacy is a critical element in our productivity analysis, and if we do not keep up with how this expectation shifts over time, we run the risk of either overregulating certain surveillance methods based on outdated conceptions of what people wish to keep private, or under regulating other surveillance methods based on a misunderstanding of how intrusive people actually believe the surveillance to be . In a seminal article, Professors Christopher Slobogin and Joseph Schumacher surveyed over two hundred individuals by subjecting them to fifty different types of surveillance procedures and asking them to rate the intrusiveness of each on a scale of 1 to 100. Left to their own devices, law enforcement officers cannot be counted on to use the most productive methods of surveillance because they are relatively insensitive to privacy costs.

7. ***Impact needed here.

Extend: “No Solvency — State Drones”Curtailing only federal drones doesn’t solve — the states use them and are gaining access to more.

Schlag 13 — Chris Schlag, J.D. (Juris Doctor) from the University Of Pittsburgh School Of Law, additional degrees in Environmental Health and Management from Colorado State and Columbia State University, 2013 (“Journal of Technology Law & Policy,” University of Pittsburgh Journal of Technology Law and Policy, Available Online via Subscribing Institutions at EBSCOhost, Accessed on 06-21-15)The many utilities and relative cost of drones has led federal, state, and local departments to express an interest in using drones domestically. Within the past six years, DHS has spent over $ 250 million purchasing ten surveillance Predators specifically equipped with video cameras, infrared cameras, sensors, and radar. These drones will be used for patrol operations of U.S. borders and for prevention of international smuggling. Other agencies have followed DHS's lead and considered purchasing drones for agency operations. The Federal Bureau of Investigation ("FBI"), DOD, Immigrations and Customs Enforcement ("ICE"), the United States Secret Service, and EPA have all introduced proposals for drones to be integrated into agency operations. Many state departments and local law enforcement offices have also purchased or financed drones for various purposes. For example, state departments in Virginia and Florida have expressed an interest in purchasing small drone vehicles for surveillance missions. Additionally, local law enforcement offices in Montgomery, Texas ; Seattle, Washington; and Gadsden, Alabama ; have already implemented drones in some enforcement operations. Although the majority of police departments intend to use the drones for surveillance and reconnaissance missions only, one police department in North Dakota has already raised the bar by using a drone for assistance during an arrest. Additionally, some police departments have expressed an interest in using drones for search and rescue operations, and traffic accident scene mapping. Drones are certainly an affordable option for these departments because drones are cheaper, easier to purchase, and easier to maintain then the usual resource of helicopters.

Extend: “Security outweighs Privacy”

Security comes before privacy even in the specific context of drones — they were used to bring down the Boston Bombers.

Galizio 14 — Gregory J. Galizio, J.D. (Juris Doctor) from Suffolk University Law School, 2014 (“A Digital Albatross: Navigating The Legal Framework Of Domestic Police Drone Technology Versus Privacy Rights In Massachusetts And Beyond,” Available Online at Subscribing Institutions via LexisNexis, Accessed on 06-30-15)

In the aftermath of the Boston Marathon bombing the partnership between emerging technologies and law enforcement operations vaulted into the public discourse. n3 While families anxiously called loved ones in the Boston area, the FBI and other law enforcement officials urgently combed through digital surveillance video searching for answers. n4 Days later and upon a tentative identification of possible suspects, police moved into Watertown, engaging in a dramatic shootout as some college students live-tweeted information from their television and internet police scanners. n5 [*118] With one suspect killed and another at-large, members of the Massachusetts State Police Bomb Squad cautiously commanded a robotic vehicle or " unmanned ground vehicle " (UGV) to detect and diffuse the improvised explosive devices left at the scene. n6 By nightfall the following day, and after a so-called "Shelter-in-Place" order by Massachusetts Governor Deval Patrick, the manhunt came to an end with police operating a robotic arm to reveal the interior of the suspect's boat hideout. n7 Subsequently, a Massachusetts State Police helicopter provided aerial reconnaissance to the tactical law enforcement teams on the ground equipped with forward looking infrared (FLIR) technology. n8 Although the prospect of domestic "unmanned aerial vehicles" (UAV) or "drones" being utilized by law enforcement has invoked wide anxiety in the legal community concerning the balance between privacy and security, n9 police have long utilized emerging technologies in aerial search and rescue missions, unmanned tactical bomb squad robots, hostage [*119] crisis and electronic wiretapping of organized crime. n10 Nevertheless, the potential of drones coming to the domestic front raises fair and legitimate privacy concerns. n11 Even the so-called "militarization" of local law enforcement has become a controversial trend in policing, with domestic drones - seen as robotic weapons of war - continuing this evolution. n12 As new surveillance technology arises in police procedure it will present new legal and practical challenges for courts and practitioners under the Fourth Amendment of the United States Constitution and Article 14 of Massachusetts Declaration of Rights. n13 The clash between surveillance technology and individual

privacy blurs the legal lines of search, seizure and suppression matters in Massachusetts and beyond

Privacy is controlled by how we perceive security.

Bambauer 13 — Associate professor of law at the University of Arizona, 2013 (“SYMPOSIUM ON CYBERCRIME: PRIVACY VERSUS SECURITY, Summer, Available Online at Subscribing Institutions via LexisNexis, Accessed on 06-29-15)

And, in 2002 and 2003, hackers penetrated Acxiom's computers, accessing records on millions of American consumers. Acxiom failed to detect the breaches; rather, the attacks were noticed first by local law enforcement and then by the Federal Bureau of Investigation (FBI). Indeed, in the 2003 case, Acxiom had no idea its systems had been compromised until a Cincinnati sheriff turned up compact discs filled with the company's records while searching the home of a systems administrator for a marketing firm. It was only while the FBI was investigating the case that agents stumbled upon a second group of hackers who had broken into Acxiom's server three times the prior year. The Cincinnati systems administrator captured the sensitive data while it was being transferred via File Transfer Protocol (FTP), without encryption, from a server outside Acxiom's firewall - the equivalent, in security terms, of writing it on a postcard sent through regular mail. Thus, Acxiom exposed sensitive consumer data three times - once through a deliberate choice and twice through incompetence. Privacy advocates were outraged in each instance. This Article argues, though, that these cases - the disclosure, and the hacks - should be treated differently. The disclosure is a privacy problem, and the hacks are a security problem. While legal scholars tend to conflate privacy and security, they are distinct concerns. Privacy establishes a normative framework for deciding who should legitimately have the capability to access and alter information. Security implements those choices. A counterintuitive consequence of this distinction is that law should punish security failures more readily and harshly than privacy ones. Incompetence is worse than malice . Security, in contrast to privacy, is the set of technological mechanisms (including, at times, physical ones) that mediates requests for access or control. If someone wants access to your online banking site, he needs your username, password, and personal identification number (your credentials). The security of your online banking is determined by the software on the bank's server and by who knows your credentials. If someone wants access to your paper health records, they need physical access to your physician's file room. The security of your health records is determined by the physical configuration of the office and by who holds a copy of the key to it. As a privacy matter, you might want only your doctor and her medical staff to have access to your records. As a security matter, the office's cleaning staff

might have a key that lets them into the file room. The differences between privacy and security matter . Security defines which privacy choices can be implemented. For example, if your entire electronic medical record is secured by a single mechanism (such as a password), it is not possible to enforce selective access, so that your dermatologist can see information about your sunscreen use but not about your antidepressant use. And privacy dictates how security's options should be implemented, the circumstances under which they are appropriate, and the directions in which they ought to develop. Distinguishing between privacy and security is unusual in legal scholarship. Most academics and advocates treat the two concerns as interchangeable or as inextricably intertwined. Jon Mills, for example, treats encryption and authentication - classic security technologies - as methods of protecting privacy. For Mills, any "disclosure without consent gives rise to privacy concerns." Similarly, Viktor Mayer-Schonberger takes up the possibilities of digital rights management (DRM) technology as a privacy solution. Mayer-Schonberger contemplates using the locks and keys of DRM as a mechanism to implement restrictions on who can access personal information. Yet the difficulties he rightly recognizes in his proposal, such as comprehensiveness, resistance to circumvention, and granularity, are those of security, not privacy. DRM is not privacy at all: it is security. Placing it in the wrong category causes nearly insurmountable conceptual difficulties. In assessing privacy protections on social networking services, such as Facebook and Orkut, Ruben Rodrigues focuses on privacy controls (which enable users to limit access to information), and distinguishes data security mechanisms (which protect users from inadvertent breaches or deliberate hacks). Yet both, in fact, are aspects of security, not privacy. Here, too, the wrong classification creates problems. Rodrigues grapples with problems of access by third-party programs, which could be malware or a competitor's migration tool; user practices of sharing login information; and authentication standards. Each issue is made clearer when realigned as a security matter. While some privacy scholarship has recognized the privacy-security distinction rather murkily, it has not yet been explored rigorously or systematically. For example, Charles Sykes treats cryptography as conferring privacy, but then later quotes cypherpunk Eric Hughes, who writes, "Privacy in an open society requires cryptography. If I say something, I want it heard only by those for whom I intend it." This correctly recognizes that privacy and security (as implemented through cryptography) are different, though complementary. Ira Rubenstein, Ronald Lee, and Paul Schwartz seem implicitly to understand the distinction, though they do not leverage it, in their analysis of privacy-enhancing technologies. Thus, in assessing why users have not embraced anonymization tools, they concentrate principally on security risks, such as the possibility of attacks against these tools or of drawing attention from government surveillance. Peter Swire and Lauren Steinfeld formally treat security and privacy separately, but conflate the

roles of the two concepts. n25 For example, Swire and Steinfeld discuss the Health Insurance Portability and Accountability Act's (HIPAA) Privacy Rule but lump in security considerations. And Paul Schwartz and Ted Janger see analogous functioning by information privacy norms, which "insulate personal data from different kinds of observation by different parties." That is exactly what security does, but unlike norms, security restrictions have real bite. Norms can be violated; security must be hacked. Rudeness is far easier to accomplish than decryption. The one privacy scholar who comes closest to recognizing the distinction between security and privacy is Daniel Solove. In his article on identity theft, Solove analyzes the interaction (along the lines of work by Joel Reidenberg and Larry Lessig exploring how code can operate as law) between architecture and privacy. Solove's view of architecture is a holistic one, incorporating analysis of physical architecture, code, communications media, information flow, and law. Solove assesses the way architecture shapes privacy. This is similar to, but distinct from, this Article's argument, which is that security implements privacy. Moreover, the security concept is less holistic: it assesses precautions against a determined attacker, one unlikely to be swayed by social norms or even the threat of ex post punishment. Finally, Helen Nissenbaum's recent work is instructive about the differences between these two concepts, although it is not a distinction she draws directly. She argues that standard theories of privacy devolve, both descriptively and normatively, into focusing upon either constraints upon access to, or forms of control over, personal information. This encapsulation points out the problems inherent in failing to recognize how privacy differs from security. An individual may put forth a set of claims about who should be able to access her personal information or what level of control she should have over it. Those claims describe a desired end state - the world as she wants it to be regarding privacy. However, those claims are unrelated to who can access her personal information or what level of control she has over it at present. More important, those normative claims are unrelated to overall access and control, not only now, but into the future, and perhaps in the past. A given state of privacy may be desirable even if it is not achievable.

Extend: “Not Unique — Regulations now”No uniqueness — regulations are being implemented to ensure safety and privacy protections.

Galizio 14 — Gregory J. Galizio, J.D. (Juris Doctor) from Suffolk University Law School, 2014 (“A Digital Albatross: Navigating The Legal Framework Of Domestic Police Drone Technology Versus Privacy Rights In Massachusetts And Beyond,” Available Online at Subscribing Institutions via LexisNexis, Accessed on 06-30-15)

While federal courts have yet to confront the issue of domestic drones and law enforcement, Congress enacted broad domestic drone guidelines through an omnibus Federal Aviation Administration (FAA) funding act. n67 The Federal law mandates that the FAA establish a [*132] "comprehensive plan to safely accelerate the integration" of domestic drones into American airspace. n68 Under this scheme, any state, local or federal public entity wishing to utilize domestic drones must be granted a "Certificate of Waiver or Authorization (COA)." n69 While the FAA has regulatory authority to grant a COA to public safety agencies, the approval process is decided solely on the basis of safety concerns . n70 Therefore, the FAA does not outline prohibited uses of domestic drones related to criminal investigations by law enforcement but simply regulates the logistics to maintain airspace safety. n71 At present, this Federal regulatory ambiguity would require federal courts to determine the permissible scope of UAVs in a law enforcement context. n72 In light of this perceived gap between FAA safety regulations and potential privacy concerns over law enforcement's use of drones, U.S. Senator for Massachusetts, Ed Markey filed a bill entitled the "Drone Aircraft Privacy and Transparency Act of 2013." n73 The central purpose of the bill is to provide "federal standards for informing the public and protecting individual privacy with respect to [*133] unmanned aircraft systems." n74 Although Senator Markey's bill requires that police obtain a legal warrant before utilizing drone surveillance in criminal investigations, the law would allow warrantless drone operation under limited, exigent circumstances such as an imminent risk of danger or terrorist activity. n75 Additionally, this amendment to FAA regulations would limit data collection and prohibits its warrantless use in a criminal proceeding. n76 Aside from regulation of police use of domestic drones, President Obama has vowed to issue an executive order outlining a regulatory framework for integrating commercial drones at home.