U.S. drone use hovers on boundaries of First, Fourth Amendments.

Jarvis, John

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As journalists, we Know the power of words. The phrase "the pen is mightier than the sword" was coined for a reason--and when the words we employ are backed up by facts and evidence gathered with all the tools at our disposal, they can have a significant impact. How then, ethically, will we use the new technology of unmanned aerial vehicles--a.k.a. drones--to wield the power of the pen to tell our stories?

To answer that question, we first must try to define what the word "drone" encompasses. In the spring 2013 issue of News Media & The Law, Lilly Chapa provided this description: "Technically, any aircraft that is controlled remotely is an unmanned aerial vehicle (UAV), or drone. Most modern drones are controlled by Global Positioning System-based commands programmed through a computer. Drones can cost anywhere from $300 to $5 million and can be as small as a dinner plate or as large as a Cessna. They can be equipped with a variety of tools, including cameras, GPS trackers, infrared sensors and weapons."

A group with a focus on the future of drone journalism has made it its mission to keep the attention on ethics. The Professional Society of Drone Journalists, which formed in 2011, bills itself on its website as "the first international organization dedicated to establishing the ethical, educational and technological framework for the emerging field of drone journalism." The organizations founder is Matthew Schroyer, a drone expert who works for a National Science Foundation grant at the University of Illinois. In a July 2013 interview posted on the website of International Human Press (http://www.ithp. org/articles/droneexpert.html), Schroyer said he has developed a preliminary code of conduct for drone journalism. His hope is that the code will be interactive at some point, so members of the society can alter the code to keep up with developments in the drone journalism field.

The code lays out the additional responsibilities that drone journalists take on when controlling these unmanned vehicles, and it also emphasizes the potential risks of operating UAVs in populated urban areas as the speed, range and size of these machines undergo further development. Being able to take aerial photographs when reporting on a story makes a drone a valuable resource, but in this regard the code also warns that the chance for abuse--especially when it comes to matters of privacy and safety --is also increased.

New technology for an old idea

Whenever the subject of drones comes up in American society, ethical conflicts and controversies follow. Consider the uproar regarding Americans' privacy when Amazon's Jeff Bezos announced Dec. 2 to CBS's "60 Minutes" correspondent Charlie Rose that his company aims to someday use "octocopters" to deliver packages to customers.

The drones do not have pilots sitting in front of a screen to fly them to their destination, Bezos said. Unlike a remotely piloted aircraft, these devices use GPS coordinates to zero in on their landing sites. His announcement prompted members of Congress to introduce legislation to deal with this potential invasion of privacy. U.S. Rep. Ted Poe, R-Texas, had this to say not long after Bezos' interview: "Think how many drones could soon be flying around the sky. Here a drone, there a drone, everywhere a drone in the United States. ... The issue of concern, Mr. Speaker, is surveillance, not the delivery of packages. That includes surveillance of someone's backyard, snooping around with a drone, checking out a person's patio to see if that individual needs new patio furniture from the company."

At present, there's a future

Whether Americans are ready for them or not, drones are already being deployed within the borders of the United States. They've been in use by the Customs & Border Protection agency along the U.S.-Mexico border and by law enforcement personnel as well, prompting the American Civil Liberties Union to post on its website that "rules must be put in place to ensure that we can enjoy the benefits of this new technology without bringing us closer to a 'surveillance society' in which our every move is monitored, tracked, recorded, and scrutinized by the government." Meanwhile, the Federal Aviation Administration, under the aegis of the 2012 FAA Modernization and Reform Act passed by Congress, has been tasked with integrating commercial drones into U.S. airspace by 2015. The FAA estimates that 7,500 commercial drones could be flying in national airspace in just a few years, and that number could rise to 30,000 by the year 2030, agency officials reported. FAA officials said the agency does not have the authority to make or enforce any rules related to privacy concerns.

All these attempts by municipalities and states to regulate how drones are operated by media organizations could eventually involve issues of prior restraint. The First Amendment Handbook of the Reporters Committee for Freedom of the Press says "a prior restraint is an official government restriction of speech prior to publication." The First Amendment protects drones equipped with cameras that are engaged in communicative photography. But the drones could face obstacles posed by considerations of property law, public safety and trespass, to name a few. The right of free expression using drones for filming events currently is constrained by reasonable time, manner and place restrictions that may be imposed on their use.

Follow the money

Part of the drive behind the expanded use of UAVs in the United States seems to be driven by capitalistic ambition. A Bloomberg.com story written by David Mildenberg and posted online Dec. 16 examines the competition among two dozen U.S. states to win the right to open testing facilities that will determine whether drones can operate in the same airspace as passenger jets. In his story, Mildenberg reveals just how much is at stake, financially, for companies such as Amazon that enter into the drone arena. Almost a quarter-million UAVs are forecast to be in use by the year 2035, according to a study by the U.S. Transportation Department, and less-stringent regulations could lead to the creation of 70,000 jobs over the next few years. Mildenberg also revealed details from a report drawn up by the Teal Group Corp.--a Fairfax, Va.-based aerospace research company--that predicts expenditures on civilian and military drones worldwide will total $89 billion during the next decade.

Drones also have the potential to save news organizations cash. Matthew Waite, director of the drone journalism program at the University of Nebraska-Lincoln, told Chapa that the helicopters used by morning television programs to report on the rush-hour traffic jams are a huge waste of money. The money spent on the maintenance of the aircraft, plus fuel and insurance, in addition to the pilot's salary, can make the yearly cost hover in the millions. But, for much less money, these same news programs could buy and fly a drone with a camera that could do the exact same job.

As these UAVs have begun to show their potential as useful tools that can be wielded by journalists and non-journalists alike, there has been an attempt to ease Americans' fear of drones. One such effort involved the Association for Unmanned Vehicle Systems International's three-day trade fair at the Washington Convention Center Aug. 12-15. The event, which took place less than a mile away from the White House, featured more than 500 exhibits whose main intent was to show how these pilotless machines and other robotic inventions can participate in law enforcement maneuvers, search-and-rescue operations, traffic control, the sale of houses and real estate, checking remote and inaccessible areas for pipeline problems and forest fires, and much more.

A d(r)one deal

Overseas reporters already have revealed glimpses of the future of drone-enhanced journalism. For example, a video on CNN's website, shot from a drone and narrated by reporter Karl Penhaul 10 days after Typhoon Haiyan ravaged the Philippines in early November, showed what the people of the community of Tacloban, Philippines, had to deal with in the storm's aftermath. The video in which Penhaul appears, titled "A bird's eye view of Haiyan devastation," could be considered a glimpse of the future of journalism.

In the United States, journalism students are experimenting with how to use UAVs to gather information for stories. At the University of Missouri's School of Journalism, students are taking courses that are designed to teach them how to operate drones for news reports. In February 2013, GJR's St. Louis editor, Terry Ganey, spoke to professor Bill Allen, a former St. Louis Post-Dispatch reporter, who said the university has a class in which journalism students are cutting their teeth on the use of "J-bots," which is the term he uses to describe these "journalism robots," or drones. The students are using the J-bots to take drone-based photography and video, all in an attempt to see if the machines will be useful to their chosen profession.

Schroyer, in a story posted Nov. 19 on the SPDJ website, used a drone to capture aerial footage of the devastation in Gifford, 111., after an outbreak of severe weather swept across the nation's midsection. His article noted that the video was shot with remote-controlled helicopter that has four motors and can be bought online. A camera capable of shooting 720p video was attached to the drone, and the video footage was transmitted to an Apple iPad on the ground. (He noted, too, that the iPad also was used to control the drone.) Schroyer said he believes that his story represents what drone journalists are capable of doing through the use of these low-cost systems.

Schroyer added a disclaimer at the end of his story that said the drone's flight followed the protocols laid out in FAA advisory circular (AC) 91-57. The FAA document, dating from June 9, 1981, addresses the subject of "model aircraft operating standards." The full text can be found online at http://www.faa.gov/documentlibrary/ media/advisory_circular/91-57.pdf.

Waite, who worked for the St. Petersburg Times (which changed its name to the Tampa Bay Times on Jan. 1, 2012) and Polidfact, told Chapa he envisions a time in the not-too-distant future when news organizations have several of these UAVs at the ready to use during breaking news, such as a traffic accident or a house fire. The device could be sent out and flown over the news scene where it could take a photograph or video and let the workers in the newsroom evaluate whether the story warrants further involvement.

Privacy concerns

In the United States, the conflict over drone use involves First Amendment and Fourth Amendment freedoms, possible issues of prior restraint by the federal government, privacy issues with regard to new technology, and state and municipal legislation to rein in what can be done with these machines. It's a complicated issue, with no immediately obvious answer as to what is "right."

The use of drones as a surveillance tool by journalists and law enforcement officials also has stirred up privacy concerns at the state level, drawing efforts by legislators to limit their use in 43 of the 50 states as of Jan. 22, according to information posted on the American Civil Liberty Union's website by advocacy and policy strategist Allie Bohm. Of those 43 states, nine have enacted drone legislation, and bills were still active in five more. But because these drones are being operated in public, there's little in the way of U.S. privacy laws that prevent their use. The Fourth Amendment, which only applies to the government, not news organizations, provides the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But is that enough in the face of this technological advancement?

For some, including the Intercept's Glenn Greenwald, it isn't. In an article written for the Guardian and posted online March 29 of last year under the headline "Domestic drones and their unique dangers," he wrote that the increasing use of domestic drones for surveillance purposes has not engendered concern among civilians because their use can be equated to the same type of work that police helicopters and satellites perform. Greenwald said "such claims are completely misinformed," and added, "as the ACLU's 2011 comprehensive report on domestic drones explained: 'Unmanned aircraft carrying cameras raise the prospect of a significant new avenue for the surveillance of American life.'"

Legal considerations

The prospect of a federal law governing the use of UAVs in the United States is a bridge too far for some. Margot E. Kaminski, in an article published in the May 2013 issue of the California Law Review Circuit, wrote that the use of drones by non-public entities constitutes the most difficult pieces of the privacy puzzle. Kaminski, executive director of the Information Society Project, a research scholar and a lecturer in law at Yale Law School, said laws governing the use of civilian drones could restrict the ability of private citizens to conduct legal information gathering. Laws that restrict how drones can be used will offer up privacy concerns as the stated purpose behind them, but she contended that the laws still will constitute restrictions on free speech.

Kaminski added that courts have not determined yet whether privacy rights or freespeech rights will ultimately win out in this debate, and it also remains to be seen how privacy and speech interests interact. She advocates a "drone federalism" approach to legislation, where states take the lead in enacting privacy regulations for UAVs. This will allow for what she terms "necessary experimentation" on how to balance privacy concerns with First Amendment rights.

The issue of invasion of privacy is at least a century old in American society. As an example, M. Ryan Calo, director for privacy and robotics at the Center for Internet & Society, wrote an article for the Stanford Law Review that considered the role of drones in the privacy debate surrounding these machines. In his article, posted online Dec. 12, 2011, Calo noted that Samuel Warren and Louis Brandeis had a good idea of what a violation of privacy looked like when they wrote their 1890 article "The Right to Privacy." The "yellow journalism" that employed the use of "instantaneous photographs splashing pictures of a respectable wedding on the pages of every newspaper" was their way to represent a world where technology ran rampant. It was the reason they gave to advance the cause of privacy law in the United States.

In his article, Calo said drones could provide the impetus to refine privacy law to fit modern-day realities, since it's not too farfetched to imagine a time when everyone from hobbyists to policemen could be using UAVs. It will be up to privacy advocates to ensure that privacy rights are not further eroded.

Entrenched resistance

Public radio reporter Scott Pham, in an article posted online July 28 at the website Mashable.com, wrote down what he thinks is the most obvious use for drones in journalism: covering events that pose the most difficulty for photojournalists on land, including public protests and natural disasters. Pham, who noted that he played a role in getting the Missouri Drone Journalism Program (a collaboration that involves the University of Missouri's Information Technology Program, the Missouri School of Journalism and National Public Radio member station KBIA in Columbia, Mo.) off the ground in 2012, said Americans' resistance to drone use within their country's borders could be worn down by showing how UAVs could be used for good instead of evil. But Pham reported that he misread the situation regarding drones. He said he deeply underestimated the drone skeptics, including members of the Missouri General Assembly who introduced legislation to ban the use of UAVs in the Show-Me State. The Missouri bill says that no person, group or organization, including journalists and news organizations, will be permitted to use an unmanned aircraft to conduct surveillance of any individual or property without consent.

In a separate article, Pham called the bill "anti-free speech, anti-journalism and altogether backward."

Pham acknowledged that the use of drones in American is a very controversial topic, but he said he had hoped people would not be threatened by the use of a drone by a public radio station, which he regards as one the least-threatening entities that could deploy one of these unmanned machines in civilian airspace.

The FAA sent a letter to the drone journalism programs of both the University of Nebraska-Lincoln and the University of Missouri, spelling out different standards that the schools would have to follow to fly their UAVs. This standard, designed for public entities, requires a "Certificate of Authorization" for any outdoor flight of a drone--a process that can take a minimum of two months to complete, reported Yahoo News' Rob Walker in a story posted online Aug. 28. Walker's story noted that the new FAA hurdle makes turning out even a timely feature story much more difficult than it should be, especially in the context of an academic semester. Walker, who described the process as a "blunt regulatory instrument," said the FAA missed out on a chance to advance the use of drones in a responsible fashion. To bolster his argument, he pointed to the abundance of unauthorized drone experimentation taking place with increasing frequency, which is completely the opposite of what these news programs are attempting to do.

An abundance of caution

Part of the resistance to the widespread deployment of UAVs appears to stem from the surreptitious nature in which they can be deployed. After all, people sunbathing in their own backyards can be filmed by a cameraman flying aloft in a helicopter just as easily as by a drone--and with the exception that the aircraft cannot be less than 500 feet off the ground, where private property protection ends, there is nothing illegal about that cameraman being up in the sky. (The U.S. Supreme Court, in the 1946 case United States v. Causby, ruled 5-2 that the ancient common law doctrine that land ownership extended to the space above the earth "has no place in the modern world." Justice William O. Douglas' opinion noted that, if the doctrine were valid, "every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.")

Schroyer, in his International Human Press interview, said people have every right to be cautious about drone use, but the rules and regulations being formulated in the state legislatures --and even down at the municipal level --sometimes don't grasp the reality of the situation. He added, though, that states are passing good laws that allow for the use of drones by law-enforcement personnel only when those agencies obtain a warrant.

Could these UAVs operated by law enforcement agencies be weaponized for certain uses in the United States? Information obtained by the Electronic Frontier Foundation in response to a Freedom of Information Act lawsuit against the federal Customs & Border Protection agency shows that idea is not as far-fetched as it sounds. In a 2010 "Concept of Operations" report for its drone program, obtained through the EFF's FOIA lawsuit, the CBP noted that it has considered equipping its drones with non-lethal weapons designed to neutralize "targets of interest," according to information posted in a weblog by EFF senior staff attorney Jennifer Lynch. Lynch noted in her post that this is the first that anyone has heard of a federal agency proposing to use weapons in a domestic setting.

In a May 6 article for Slate, Rothenberg wrote that the debate over drone use by journalists in the United States encompasses much more than the potential privacy threats that some experts foresee in the United States. It also includes how the UAVs have become symbols of the disorder, uncertainty and threats that surround us in a rapidly changing world. To Rothenberg, the greatest challenge we face in our society is how to conduct the debate over this emerging technology in a way that acknowledges the very real fears some people have about these machines. From this learning experience, he said, will come a better, more educated way to regulate drones.

The recent controversy about drones and the ultimate impact they will have on journalists and American society as a whole --will continue to raise legal and ethics issues for journalists to consider for some time to come. The debate over these issues is only now just beginning.