My Analysis of HB 1556

(01/14/14 Edit:  The Daily Oklahoman ran an editorial on Jan 14, 2014 about HB 1556 with references to my blog.  It can be found here.)

As I promised, this is an analysis and review of Representative Paul Wesselhoft’s H.B. 1556 that pertains to operation of unmanned aerial systems in Oklahoma. This bill was introduced in the 2013 legislative session, but held over for the 2014 session. HB 1556 can be read here.

First, I want to clearly state: we are not opposed to working with legislators to ensure that the privacy rights and safety of the public are protected. We are more than happy to work with legislators and also provide access to aviation experts that can help draft legislation. However, we do not support the current version of HB 1556. HB 1556 was drafted entirely by the ACLU without our involvement, and as far as we know, without any involvement from any aviation experts. The ACLU has aligned with other groups and is waging a very aggressive national anti-UAS campaign in state legislatures, including Oklahoma.

I also want to clearly state two positions on behalf of our industry in Oklahoma:

1. We DO NOT condone, support or approve of non-military “weaponized” UAV or UAS technology. The Federal Aviation Administration has already stated that no “weaponized” UAV or UAS technology will be allowed to operate in the national airspace system. The FAA has broad powers to regulate operation of any aircraft in the national airspace system (manned or unmanned) to ensure safe operation. Mr. Jim Williams from the FAA is on the record as stating: “We currently have rules in the books that deal with releasing anything from an aircraft, period. Those rules are in place and that would prohibit weapons from being installed on a civil aircraft.”  Therefore, there is already a federal prohibition on “weaponized” unmanned aircraft and violations carry very severe penalties.
2. Unmanned aircraft do not obscure, invalidate or in any way eliminate Fourth Amendment protections against unreasonable search and seizure.  The Fourth Amendment applies today to both manned and unmanned aircraft operations by law enforcement.   The courts have ably shaped interpretation of the Fourth Amendment for over 220 years and will continue to do so. Furthermore, I am aware of no law enforcement agencies or representatives in Oklahoma that have indicated a desire to operate any unmanned aircraft for warrantless surveillance.

So, to be abundantly clear:  1) as an industry we do not plan or intend to “weaponize” UAS technology for any non-military application; and 2) unmanned aircraft should not be treated any differently than manned aircraft when it comes to Fourth Amendment protections.  Statutes are already in place to protect privacy from any surveillance, electronic or otherwise, manned or unmanned.  Existing federal and state law already cover both areas sufficiently.

Before I begin an analysis of the bill, it is important to point out the current state of affairs for UAS integration into the national airspace system.  Commercial usage of UAS technology is currently prohibited in the national airspace system.  Non-commercial use is heavily regulated and requires explicit FAA approval such as Certificates of Authorization (COAs).   The FAA is methodically working toward a very safe and efficient integration of unmanned aircraft in the national airspace system.  The FAA’s primary objective is safety.  Widespread operation of UAS in the national airspace system will only be allowed when safety has been demonstrated and the FAA has enough operational safety data to develop rules and regulations for operators to follow.  The purpose of the six FAA UAS test sites is to enable the FAA to collect operational and safety data to assist in the development of safety rules and procedures.  The FAA operates in a very safety-centric culture and the development of UAS technology has not changed – and will not change – that culture or approach.

As of today, we don’t know exactly what types of UAS operations will be allowed by the FAA.  It will still be a while before we know.  We do not know where UAS will be allowed to operate, or at what altitudes UAS can fly.  We don’t know if or when UAS will be allowed to operate around populated areas.  We do not know what types of safety technology (such as “detect and avoid”) will be required.  We also don’t know what types of training or certifications will be required by the FAA for UAS operators.  For all practical purposes, UAS are not allowed to operate at all at the current time (with a few exceptions).  We are currently in a very heavily regulated condition and the relaxation of the restrictions is expected to be gradual over the next few years.

Representative Wesselhoft says that “his  legislation does not pertain to development or testing of UAVs and only applies  to the application of how those UAVs are used by government  agencies.”  Law enforcement agencies have been using aircraft since as early as 1919.  There is well-defined case law such as the U.S. Supreme Court case of Florida v. Riley in 1989 that addresses the role of the Fourth Amendment and police use of aircraft.   Also, even though law enforcement have been using aircraft for nearly a century, I am aware of no attempts by law enforcement to use armed aircraft against the populace.  I have never seen a helicopter gunship owned or operated by a sheriff’s department.

So, this begs the question:  given the very strict federal regulations for UAS, what are the threats that UAS currently pose that require any type of urgent immediate state legislation?  And, why must unmanned aircraft be treated any differently than manned aircraft?   Distinctions between manned and unmanned vehicles are legally ambiguous.  Currently, any law enforcement agency that wants to use UAS for any purpose must first obtain a Certificate of Authorization (COA) from the FAA which is far more difficult to obtain than a search warrant.   A search warrant can sometimes be obtained within minutes (or at most hours).   A COA requires weeks to obtain from the FAA.   Against the backdrop of very restrictive FAA rules, there is absolutely no need or justification for any urgent state-level legislation at this point that requires search warrants.

It is for these and other reasons that we believe Rep. Wesselhoft’s legislation is completely unnecessary.  However, the legislation has been introduced and as an industry we must respond.   Therefore, the following are important portions of the legislation that must be pointed out since they represent serious problems for the UAS and aviation industries in Oklahoma.

First, the legislation defines “surveillance” broadly as:

• 3. “Surveillance” means any activity the purpose of which is to gather any type of media, data, information, or evidence of any kind relating to the person, property, activities, acquaintances, associations, movements, choices, conduct, or appearance of another person or organization;

Rep. Wesselhoft’s legislation begins by banning all unmanned aircraft activity in the State of Oklahoma, except for certain conditions.   Section 3.A. states:

• A. Except as otherwise specifically authorized in the Oklahoma Unmanned Aerial Surveillance Act, it shall be unlawful to operate an unmanned aircraft system for or in connection to surveillance within the state.

The legislation then provides six (6) limited exemptions, each with onerous requirements.  For example, when law enforcement or firefighters use UAS technology to find a missing person or assist with an emergency situation, they are required to file sworn statements within 24 hours as to why they believe the use of UAS technology was necessary.  These records must be maintained and made available to the public on request.

For other potential operators, the legislation states the following:

• 5. Any agency, person, or organization, when acting on the informed and freely given consent of the person or organization whose person or property are the subject of the surveillance, provided the consent is made in writing prior to the commencement of surveillance;

First, this contradicts Rep. Wesselhoft’s public statements that H.B. 1556 only pertains to operation of UAS by government agencies since this applies to everyone including private operators.  And given the very broad definition of “surveillance”, this is troublesome, since just about any type of UAS operation could be interpreted as “surveillance” using the definitions of HB 1556.  For example, if you are collecting atmospheric or weather data and scan out over the horizon from a UAV, would it be necessary to have written consent from every potential landowner in the field of view?  How is “subject of the surveillance” defined or interpreted?  Imagine for a moment what would happen if an airline had to negotiate a written agreement with all landowners along and nearby a potential flight route.  The aviation industry, as we know it, would not exist at all.  After all, pilots and passengers are able to freely observe the property under the aircraft from their windows and even take photographs if desired.  I’m aware of no person that has been able to credibly claim that this poses a privacy risk.  Given the millions of airline passengers who traverse the country yearly, where are the privacy violations and complaints?  This overflight scenario has existed for nearly a century.  The FAA restricts aircraft operation by specifying minimum altitude clearances.  The same will be true for unmanned aircraft.  And again, we don’t even know yet where UAS will be allowed to legally operate.

Also, as I have pointed out before, Oklahoma has very strict laws regarding voyeuristic activity as part of our “peeping Tom” laws.  Existing state law already makes it illegal to spy on or observe the inhabitants of a dwelling or structure.  The scenario of the “silent ‘drone’ hovering outside a window” is already illegal and very unrealistic.

However, the most problematic portion of HB 1556 is section 3.D.:

• D. Regardless of whether a criminal prosecution or investigation is made, any person or organization aggrieved by conduct in violation of subsection A of this section shall have the right to bring a civil action against the responsible party or parties, who shall be liable for treble actual damages. In addition, any willful or wanton conduct of the violator or deliberate effort to conceal the violation shall be subject to punitive damages not to exceed Fifty Thousand Dollars ($50,000.00) per violation. A civil claim brought under this subsection shall be proven by a preponderance of the evidence, and shall be brought any time within two (2) years of discovery of the surveillance by the plaintiff.

This is what I call the “gift to trial lawyers that will keep on giving”.  What constitutes a “grievance”?   Consider how a creative individual who might feel “aggrieved” by UAS operation could wreak havoc in our state courts.   Or, imagine how an out-of-state extremist activist group might be able to take advantage of this section to harass Oklahoma farmers or ranchers. This is an absolute recipe for frivolous litigation and a very serious problem with HB 1556.  Representative Wesselhoft never publicly mentions this portion of his draft legislation, but instead publicly states that his legislation “only applies to the application of how those UAVs are used by government agencies.”  Section 3.D. directly contradicts the public claims of Representative Wesselhoft and the ACLU since it applies to everyone, not just law enforcement personnel or government agencies.

Again, we do not yet know what type of UAS operation will be allowed by the FAA, so how can any state legislator possibly be able to identify realistic actual harms and risks that require urgent legislation?  The truth is that HB 1556 was written by the ACLU and Oklahoma is being used as a battleground state to carry out the ACLU’s political agenda.  The ACLU is actively engaging in irrational ”fear-mongering” to pass “feel good” legislation.  Meanwhile, the larger risks to personal privacy associated with the internet have been ignored by the ACLU for more than two decades (see my earlier posts on this topic).

Furthermore, I fully predict that the ACLU will “flip-flop” on this issue if laws are passed and the ACLU will likely challenge some of the same laws on First Amendment principles.  For example, the ACLU has made the following statement about the Texas legislation:  “And then there are bills, like … Texas’s, that prohibit drone photography, raising First Amendment concerns.”    [also see Jan 19, 2014 update on ACLU positions]

We call on legislators to address privacy risks by addressing the broader issue of data storage, sharing and distribution.  This should be done in a “technology neutral” manner or the efforts will be absolutely meaningless and futile.  Unless legislators are willing to address these larger more complex issues in a serious manner, there will be no real progress in the development of privacy protections.

Therefore, as an industry, we oppose HB 1556 as unnecessary, unrealistic, and extreme.  This legislation could prevent the UAS industry in Oklahoma from developing and could even stop the industry completely.  It could also create a serious change for the worse in our state’s aviation and aerospace industries.  We call on Representative Wesselhoft and the Oklahoma ACLU to stop misrepresenting this draft legislation and to be straightforward with the public about the true contents and language in the bill.  The citizens of Oklahoma deserve no less.

Again, we are willing to work with legislators to develop realistic legislation.  However, HB 1556 is not something that we – as an industry – can support.  Until we know what types of operations will be legally allowed by the FAA, there is no way we can draft or pass realistic and responsible legislation.

My Response to Rep. Paul Wesselhoft’s 12/30/2013 Press Release

On December 30th, 2013, Representative Paul Wesselhoft issued a very inaccurate press release about our state’s UAS activities and industry that included several false statements.  The press release was in response to the FAA UAS test site selection announcement on December 30, 2013 regarding selection of six UAS test sites in the country and can be found here.

As you probably know, on December 30, 2013, the FAA announced the selection of six UAS test sites throughout the U.S.   The competition was very fierce, and Oklahoma was not selected.   Within a couple of hours of the FAA’s announcement, Representative Wesselhoft issued a press release titled:  “Wesselhöft Frustrated after Oklahoma Passed Over as Drone Testing Site”.  As far as I know, Representative Wesselhoft did not contact anyone in the state’s UAS or aerospace industries to verify his claims.   Therefore, I will address the inaccuracies in detail.

First, one of the minor inaccuracies.  Representative Wesselhoft stated:

“In fact, Oklahoma State University has a degree program pending that would allow students to focus their studies on UAV development.

The degree program at OSU has been in place for over two years and is not “pending”.   The degree program is already very successful and attracting the best and brightest UAS graduate students.   By all indications, the FAA decision will have absolutely no impact on the OSU degree program and it is anticipated to continue to grow.

Next:

“Not only that, but Oklahoma has a large air corridor near Ft. Sill that would serve as a perfect drone testing site. I am disappointed also that we have lost out on the economic growth opportunities that would have come with serving as a test site for the FAA.”

Oklahoma does NOT have a large air corridor near Ft. Sill.  Airspace in that area was proposed as part of the FAA proposal, but there is no current air corridor.  There is testing activity within the restricted airspace of Ft. Sill, but no air corridor has been established.  We have been abundantly clear about this over the past two years.

Next:

“I hope these startup companies stay in Oklahoma because Oklahoma is a very business friendly state and will provide them support. However, I fear some may gravitate to those selected states.”

I have heard of no Oklahoma UAS company stating that they will move to one of the selected states.  As a small business owner, I’m more likely to relocate to another state as a result of unpredictable restrictive legislation that is drafted without input from experts and that is based on irrational claims and fear-mongering. If HB 1556 is passed in its current form, it will have a direct and harmful effect on businesses in Oklahoma.

Next:

“Wesselhöft noted that in all of the states chosen as test sites, legislation has been passed that would restrict commercial drone development or testing.”

This is absolutely false.   The most obvious example is Nevada, where no legislation has passed.  North Dakota did NOT pass restrictive legislation, but instead passed “pro-UAS” legislation that included funding for their state’s UAS activities.   New York has passed no legislation.   Although Alaska created a task force, no legislation was passed.   The Texas law has dozens of exemptions for law enforcement and commercial users, and in reality only restricts private users of UAS which will likely be challenged as unconstitutional (the ACLU is already claiming the Texas law might violate First Amendment rights).    Virginia has a two-year moratorium, but in reality the FAA will not allow operation until 2015 (which makes the moratorium a moot issue). Furthermore, each of these selected six states provided funding to sustain operation of their test sites.   Representative Wesselhoft’s draft legislation (written entirely by the ACLU) would be among the most extreme, restrictive and damaging in the country and goes far beyond what either Rep. Wesselhoft or the ACLU are stating in public.  Representative Wesselhoft’s press release implies that he believes that Oklahoma would have been selected if only his legislation had been passed.   This is absolutely false.

Next:

“Wesselhöft noted that his legislation does not pertain to development or testing of UAVs and only applies to the application of how those UAVs are used by government agencies.”

This is a false statement based on every version of his draft legislation that I have read.  His legislation includes very severe penalties for both government AND non-government users and operators of UAS.   In fact, there are provisions for “treble damages” for any UAS operator (including private) which is a recipe for frivolous litigation in our state courts, and a gift to trial lawyers that will “keep on giving” in the future.  Representative Wesselhoft’s legislation will adversely impact the entire UAS industry in Oklahoma.  It will also adversely impact the larger aerospace and aviation industries in the state.   As we have pointed out multiple times, UAS operation by government or law enforcement is already subject to Fourth Amendment constitutional protections.   I spoke about this in my hearing testimony back in September 2013.

Inaccurate public statements by our politicians about any industry can be harmful and have serious negative consequences for our global competitiveness.

I will soon provide a detailed breakdown and analysis of Representative Wesselhoft’s proposed legislation and provide a thorough explanation of why we, as an industry, should oppose the bill and work to prevent passage.

Jan 5, 2014 Edit:

For those that want to read Rep. Wesselhoft’s HB 1556, it can be found here. I will provide an analysis and breakdown of this proposed legislation at a later time.

Jan 20, 2014 Edit:

My analysis of Rep. Wesselhoft’s HB 1556 can be found here.

Technology and Imagined Harms

I recently read an interesting article written by Robert E. Mensel called “’Kodakers Lying in Wait’: Amateur Photography and the Right of Privacy in New York, 1885-1915” [1].  The article describes the public fear about the introduction of inexpensive cameras and the rise of amateur photography in the late 19^th century.

The late 19^th century was a time of immense change in the United States.  The scientific method and industrialization enabled an accelerated pace of change never before seen in the nation.  The development of new technology outpaced the average American’s understanding and grasp of the technology.  For the average person, the rapid pace of technological advance blurred the lines between fantasy and what would become a new reality as new technological innovations quickly found their way into everyday life.  This was occurring during a time when there was a profound educational gap in the nation.  In 1890 around 13.3 percent of persons aged 14 years and older were illiterate and unable to read or write in any language.   By 1979, this number was less than one percent.  In the 1890s, only about 4 percent of 17 year olds would graduate from high school.  By the 1990s, this was closer to 80 percent.

Growing up in the 1960s and 1970s, I recall reading about primitive cultures that were frightened by cameras since they believed the camera could “steal a person’s soul”.  Since I was alive during the Apollo program, I was probably guilty of a certain amount of hubris as I read these accounts, since they seemed somewhat silly to me.  However, less than one lifetime earlier, many Americans had similar beliefs.  There are published reports from the 1890s where photography aficionados claimed that they could induce hypnosis from a photograph and transfer the characteristics of the person pictured in the photograph to the person under hypnosis.  It was reported that even Thomas Edison made serious attempts to photograph the human soul.

Unfortunately, these fantastic claims were very unsettling to late Victorian Americans.  After all, having your “soul stolen” seems like the ultimate privacy violation.  As photography became available to the masses, one enterprising American entrepreneur, George Eastman, sought to build the largest photographic supply company and founded the Eastman Kodak company.    The term ‘Kodak’ became a very recognizable brand name.  Then, in 1888, the Eastman Kodak company introduced their first camera which was called the “Kodak”.

Unfortunately, as a result of irrational fears about the technology, the term ‘Kodaker’, which was a term that was used to refer to amateur photographers, took on a pejorative meaning.  Irrational fear is often perpetuated by an excessive amount of metaphors and rhetoric.  In the case of the new amateur photographers and the inexpensive new cameras, the technology was described as “deadly weapons” and “deadly little boxes”.   Even journalists began to describe amateur photography in the language of threat and violence which perpetuated the public’s unease about the technology.  One New York Times story from 1889 stated:

“The young knights of the camera . . . [were] inoffensive in appearance, but well-armed with dangerous weapons to those who may fall in their way”.

But the fantastic and sensational claims were not limited to metaphorical violence.   The New York Tribune even compared amateur photography to substance abuse in an article from 1892:

“[a]mateur photography has the reputation of possessing in its various forms all those seductive charms in the enjoyment of which the weary, earthbound mortal is released from the durance vile and translated, for the time being, into some seventh heaven of bliss.  Opium, hasheesh, even the fascinations of Monte Carlo are supposed to pall before its many attractions.”

As a somewhat humorous side note, these comparisons also led some enterprising individuals to make fantastic claims about the medicinal benefits of photography including cures for neurasthenia and other ailments.

The lens of historical hindsight can be a very useful tool as we face societal challenges. I believe the fears and concerns about unmanned systems are not much different than other technological fears in the past.  Today, as during the late Victorian era, the world’s population is witnessing major technological advances that only a few years ago were the subject of fantasy and science fiction.  But, some have an unease and uncertainty in how to frame and interpret the technology.

I recently read an article by a legal scholar that made frequent references to George Orwell’s 1984.  The article left me with the impression that the author believed that George Orwell’s vision was a guaranteed inevitable course of human events related to technology.  Society is usually first exposed to visions and fantasies of the future by works of fiction.  We often compare technological progress to science fiction and science fiction becomes somewhat of a societal benchmark of progress.  However, good literature requires tragedy.  In science fiction, it is the villain that typically embraces and develops new fantastic technology and is intent on using it for evil purposes.  In the end, it is the villainous scientist that becomes a victim to his own creation.

During the recent state hearing in our state legislature on UAS and privacy, I listened to two proponents of strict privacy legislation (the ACLU and EPIC) recite a litany of imagined “harms” associated with the proliferation of “drones”.  Both groups seem intent on the use of metaphors, rhetoric and fear-mongering to promote rapid passage of very restrictive legislation.  They do not cite or reference actual harms, or actual cases of injury, but instead they rely on fantastic claims of future imagined harm. Both groups attempted to conjure up images of the ominous “drone” quietly hovering outside of a person’s window and capturing imagery of the private lives of the average citizen. They warned legislators that the only way to prevent this imminent threat is to pass strict legislation – NOW!

Unfortunately, these claims don’t stand up to any test of reality.  It is currently illegal in our state to “loiter” outside of a house or structure and spy on inhabitants.  This type of behavior is covered by existing voyeurism and “peeping tom” laws already on the books. In fact, if a person is intent on this type of voyeuristic activity, it is not very practical, or cheap, to use a whirring “drone”.  It would be easier (but still as illegal) to attach a smartphone camera to a pole.  Furthermore, given the FAA’s safety-centric culture and mission, there is absolutely no chance that any unmanned aircraft will be allowed to legally loiter outside of homes or populated areas.   So, in addition to existing privacy laws, forthcoming laws to enforce safety will also prohibit this type of behavior.

Imagined harms are not subject to the constraints of reality.  They are fertile ground for the growth of irrational fears, and eventually, irrational behavior. Laws based on irrational fears rarely end well for society.

Unmanned systems are, and will continue to be, tools.  A hammer can be used to drive nails and frame a house, or it can be used to bludgeon a person.  It would be absolutely absurd to pass detailed legislation about the use of a hammer that prescribed the allowable and unallowable uses of a hammer. It is more reasonable and practical to pass laws that address violence in a more general nature, since there are an infinite number of ways to accomplish violent acts.   The same is true with privacy protection.  We should focus on how we use, store and share data.   Otherwise, legislative efforts will be futile and the lens of historical hindsight will not judge these efforts kindly.

[1] American Quarterly, Vol. 43, No. 1 (March 1991).

The ACLU versus…… itself??

[Note:  I would like to credit  Adam Thierer and his article for some of the inspiration for my article below]

The position of the American Civil Liberties Union (ACLU) in the public debate about technology and personal privacy can best be described as paradoxical (and quite possibly described as self-contradicting and hypocritical).  In the past couple of years, the ACLU has attempted to position itself as a “champion” for personal privacy rights of average Americans.   But those of us who are old enough to remember the pre-Internet era have watched the ACLU “flip-flop” between very extreme positions regarding privacy and technology.  In fact it seems that the ACLU is always at the opposite side of the privacy debate pendulum ever ready to push even harder to keep it moving.

First, I have to say that the ACLU has many times defended important civil liberties, particularly in areas such as freedom of religion and freedom of speech.  However, when new technology is involved, the ACLU can sometimes find itself on the wrong side of the debate.  The consequences are not always immediately evident. Despite the public sentiment regarding personal privacy today, our nation has actually had a history of proactively protecting personal privacy rights.  The Privacy Act of 1974 was a significant milestone that created important safeguards for personal privacy in recognition of the growth of large databases that were used by government agencies.  As the computer industry grew, additional legislation was added.   The Electronic Communications Privacy Act of 1986 extended federal wiretap protections to electronic communications and made “eavesdropping” on digital communication illegal.  Up until the early 1990’s legislation was keeping pace with the evolution and development of new technology.

The introduction of the world wide web in the early 1990’s gave the public their first view of the internet.  Although government and universities had already been using the internet (previously called the ARPANET) for research and other work for several years, the introduction of the “web” gave the public the ability to use the internet for a variety of purposes including personal entertainment.   Unfortunately some of the early uses of the web were not exactly considered positive by the public and “adult content” flourished during the early days of the web.  This happened to coincide with a continued focus of our secondary educational system to expose children to the internet at earlier and earlier stages.   Our society now faced a dilemma in how to allow the web to grow while protecting children from the exponentially increasing amount of indecent adult content that found its way onto the internet. Time magazine addressed this issue in August of 1995.

Time cover from August 1995.

To address the risk of children being exposed to adult and indecent content, a federal law was passed called the Communications Decency Act (CDA) in 1996.  The intent was to regulate obscenity and indecency in internet material and content primarily to protect children.  This is where the ACLU entered the debate.  The ACLU challenged the CDA and was able to have provisions in the law struck down based on first amendment arguments.   The ACLU argued that attempts to regulate the internet risked violating the “free speech” rights of adults.  Unfortunately this put an enormous burden and responsibility on the parents of young children.   It seemed that our children were exposed to the internet non-stop including at school.  Frustrated parents and teachers had to constantly stay on top of the latest internet filter technology and work to stay ahead of those entities and individuals that attempted to circumvent filters.  In my personal opinion, our children and society suffered as a result.

So, why did the ACLU fight so hard to prevent regulation of the internet?   At the time, the ACLU aligned with other activist groups to promote an idea termed “user empowerment”.   Basically, user empowerment meant that the internet user had the ultimate responsibility to protect himself/herself on the internet.  These groups insisted that that the government should not regulate the internet in any way (including protections against indecency) since attempts at regulation had the potential to restrict free speech.  A consequence of “user empowerment” is that the user must be proactive to protect his/her privacy and ultimately is responsible for his/her own actions (or inactions).    In essence, this concept protected those that wanted to use the internet to share or distribute indecent or obscene content under the claim of first amendment free speech and freedom of expression.

Obviously we have always been challenged in our society to find the right balance between freedom of speech and restriction of indecent or obscene content, but the development of the world wide web amplified this debate. “User empowerment” also brings with it “user responsibility”, just as all of our other freedoms and liberties bring along responsibilities.   Now, nearly two decades later, the ACLU has shifted its position and is now championing “personal privacy” and seeking laws to protect privacy, mainly because of the fear of government surveillance.  Gone is the argument for personal responsibility and in its place is the argument for new laws (and thus, government involvement and oversight). There are consequences to an internet culture where the ACLU-supported “user empowerment” concept is considered the guiding principle.  The user must proactively protect himself/herself from malware and malicious attempts to obtain personal or private data.  The user must guard against inadvertent release of personal details or important information such as financial data.  The “empowered user” now becomes an enticing target of those that want to use information for business purposes (i.e. – targeted advertising) and also includesthose that want to use it for malicious purposes.   Almost 20 years into the life of the world wide web with the ACLU-championed “user empowerment” culture, the ACLU has sounded an alarm on the threat to civil liberties on the internet.   The threat is not adult content providers or pedophiles; it is now online advertisers.

Here is a very interesting ACLU article:

https://www.aclu.org/blog/technology-and-liberty/online-tracking-and-consumer-choice

There is an interesting quote from the article: “Ultimately, it demonstrates the absurdity of the position that individuals who desire privacy must attempt to win a technological arms race with the multi-billion dollar internet-advertising industry.” This is an intriguing statement, especially if you consider the millions of parents who have for two decades been attempting to win a “technological arms race” to protect their children from indecent and obscene adult content on the internet.   After all, it was the ACLU that led the charge to protect “user empowerment”.   Now, there are consequences and the ACLU has seemingly changed sides.  While the ACLU fought against restrictions on indecent content, they are now sounding the alarm on internet advertisers. What happened to the argument for “user empowerment”?   This is a serious “flip-flop” in positions.

For the past few years, the ACLU has been actively involved at the state levels to promote and pass anti-UAS legislation under the guise of “protection from surveillance”.   However, as in the past, the ACLU is quite adept at imagining “potential harms” that can be far-fetched and unrealistic, yet seemingly unable to recognize (or admit) potential unintended consequences of their position. Commercial UAS operation is currently prohibited by the FAA.  Hobby and recreational use of UAS is very constrained and limited.  As UAS are allowed to operate in the national airspace system (NAS), the FAA will focus first on safety.

As I recently listened to claims by the ACLU, I was struck by how unaware the ACLU is with the current regulations and the likely outcome of FAA rulemaking.   The FAA makes decisions first based on safety.  Safety provides the basic foundation and framework before rules are put in place.   When I hear the ACLU and others warning citizens that “drones will be flying and looking inside of your windows!” I almost have to chuckle.   I can never imagine the FAA allowing any type of UAS operation that will allow flights where UAS can “look into windows”.    Regardless, even if they did, most (if not all) states have peeping tom laws that would make this illegal and violators would face very stiff penalties.   For example, here is the law in Oklahoma:

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=69645

It would seem that prosecutors have existing laws on the books to prosecute this type of surveillance today. The ACLU and groups like EPIC are aggressively pushing state legislatures to pass legislation immediately and they are using fear-mongering and hype to create an artificial sense of urgency.  These state laws are being drafted without an understanding of existing aviation laws, the role of the FAA, or anticipated UAS rules and regulations in the future.  This, in my opinion, is irresponsible and dangerous. I believe the consequences of the ACLU’s actions will not lead to positive outcomes for our country or society.

The rest of the world is moving forward in realizing the economic benefits and potential of the UAS industry.  For the first time in our history, the U.S. may fall behind in an emerging area of aviation.   History will provide an unvarnished view of this debate.  It is my hope that reason and good judgment will prevail over irrational ideas and we will be able to look back and realize that good decisions were made, rather than foolish ones.

What’s in a name?

Probably the most frequent question I hear often is “Why does your industry oppose usage of the word ‘drone’?”  The answer is not what most expect to hear.

First, the term “drone” is not considered a derogatory word and the term does not offend me.  A large part of the population and press have adopted the term “drone” to refer to all unmanned aircraft.  It is a single syllable word that is simple to say and remember.   It is easier to say and remember than the terms we use as an industry such as unmanned aerial systems (UAS), unmanned aerial vehicles (UAVs), or remotely-piloted aircraft (RPA).

However, the term “drone” is not a new word for the aviation industry.  It has been around for many decades and has a specific meaning to aviation professionals.   As early as the 1940’s, the military needed surrogate aircraft for use in training and research and development.  These systems were used for target practice,  radar R&D and a lot of other uses.  Existing aircraft were modified so that they could fly simple trajectories and operate without a pilot.  The term “drone” was used to describe these modified aircraft and the term took on a very distinct meaning in the aviation industry.   The term “drone” represented a very specific type of aircraft and that meaning exists even through today.   Here is a link to a picture of an actual drone.

Real “drones” represent systems that are relatively less-sophisticated than what we as an industry prefer to think of as UAS or UAVs.   However, drones are in fact considered unmanned aircraft.  Therefore,  while all drones are UAS (or UAVs), not all UAS are drones.

So, why do we object to the use of the word “drone” when describing all unmanned aircraft?

Accurate language and terminology is important, especially for technical fields and disciplines.  Specific disciplines have very detailed vocabularies that reflect the complexity of the domain.   For example, when I visit my medical doctor, I use the best words and terms that I know or can think of to describe my condition or symptoms.  I am not a medical doctor, and obviously I don’t have the vocabulary of a medical doctor.   When my doctor transcribes notes or confers with other medical professionals, he/she uses words and terms that are far more accurate and exact than the words that I use because accuracy is important in the field of medicine.  Improper or wrong words can have serious consequences in healthcare.  My doctor is probably not offended (although probably amused) that I do not use exact medical terms, but uses his/her experience and knowledge to interpret what I am saying into something that has exact meaning.

Law is another area where language is important. If you have ever worked with an attorney to create a document or contract, then you have experienced the very meticulous and detailed “wordsmithing” that is considered critical by the legal profession.  A single incorrect term or a misplaced word can impact enforcement of contracts or interpretation of laws.   The choice of terms and words is very important.   In fact, I don’t know of any other profession that focuses as much on the importance of detailed accurate terminology than the legal profession.   So, you can imagine my surprise when I recently came across a blog entry from the American Civil Liberties Union (ACLU) that criticized the unmanned systems industry for striving to use accurate terminology and language. The blog entry is here.

At the very least, this blog by the ACLU is interesting, if not misleading and hypocritical.  The ACLU has a large number of attorneys which makes this particular blog entry even more baffling since the blog entry itself has a very political tone and is full of dark innuendos and fear-mongering.  For instance, can we use the same George Orwell references cited in the blog article to criticize the fields of medicine and law?  After all, both disciplines use very dry technical terms and words in order to establish and maintain accuracy in communication. Is there a dark or sinister reason why a gastroenterologist doesn’t officially refer to himself/herself as a “belly ache doctor”?

I believe that the ACLU blog article is an attempt at fear-mongering.  After all, what reasonable person would equate a three pound foam toy with a multi-million dollar military system such as the Predator?  I must disagree with the ACLU: accurate and precise language is very important in many more areas than law and medicine.  (I will specifically address what I perceive as the ACLU’s position and motivation later in a detailed post).

As a friend pointed out to me recently, the average person uses the word “laws” when referring to statutes, ordinances, regulations, policies and rules.   However, an attorney would quickly remind you that there are differences between each of these.   The same is true of the aviation industry in general.   For example, helicopters are considered aircraft.   Jet airplanes are considered aircraft.  Therefore, the term aircraft is a very general term, but when a person hears the term “aircraft” they typically don’t think of a helicopter.   Likewise, a B-52 is considered a jet-powered bomber.  It is also considered a jet aircraft.    However, we don’t call a 757 airliner a “bomber” or “jet bomber”.   Using and extending the ACLU’s reasoning, we would always describe a technology by the most extreme form and usage of the technology and therefore, 757 airliners would be called “jet bombers” in order to remind people that B-52’s, B-1’s and B-2’s exist and are used as weapons of war.

This is absurd.

I grew up in rural Oklahoma and naturally I have been around agriculture for most of my life.  Ask any farmer or rancher if all cattle are “cows”.  He/she will tell you that the term “cattle” can be used to describe cows, bulls, steers or heifers.  Most people cannot distinguish between the four.  But the meaning is very important for livestock producers and people in the industry. All cows are cattle, but not all cattle are cows.  However, the average person uses the term “cows” to describe all cattle.  It isn’t offensive to farmers or livestock producers, it is just inaccurate.

Terminology and language change and evolve as technologies emerge and mature.  Automobiles were called “horseless carriages” when first introduced.   Today we still have parallel terms:  car and automobile.   Early aircraft were called “heavier than air vehicles” and later aeroplanes.  Today, we use words such as airplanes, planes,  and jets.

The biggest challenge our industry faces is that the world has not yet fully realized the applications and benefits of unmanned aircraft for peaceful civil uses.  As noted author Peter Singer has pointed out, military applications represent less than 1% of the potential of applications for unmanned aircraft, but dominate the public perception of what unmanned aircraft are about.  The challenge for the industry is to show the positive uses which far outnumber military applications.

Names and terminology are always important.  The terminology and names that our industry use will change over time and become descriptive of the applications and uses.  In the meantime, the term “drone” will not be considered a derogatory name in our industry, it will just be viewed as inaccurate when referring to all unmanned systems technology.   But, there are much more important and positive issues where we can focus our efforts and time and we will do so.