One big issue with regulating new technology is defining it. An early version of the Nevada driverless car law appeared, on my read, to sweep in features that many cars already have. The current version of the law now excludes adaptive cruise control or any other “active safety system or a system for driver assistance” short of self-driving. Thus, Lexus Lexus does not have to put up a large bond or get a special license plate, as Nevada requires of driverless car operators, merely because some Lexus cars sport an artificially intelligent transmission.
Drone legislation today faces quite the opposite problem: it leaves out technology that is functionally equivalent. People are understandably concerned that drones make it too easy and cheap to monitor citizens. As many as thirty states, plus federal lawmakers, have responded to this concern by proposing drone legislation. Senator Ed Markey is a long-standing privacy champion. His proposal applies to “unmanned aircraft systems,” the same term used by the Federal Aviation Administration. Most state bills also use this formulation. A few, like Arizona, define the term drone a little more broadly to include any unmanned device that employs “aerodynamic forces or gases to provide lift.”
Here’s the problem: robots do not need to fly in order to violate our civil liberties. There are robots under development that can climb the side of a building or leap thirty feet into the air onto a roof. Recently a company called Bounce Imaging began to market the Explorer—a rubberized ball that officers can throw into a room or street. As the device “bounces and rolls,” writes The Atlantic, “its cameras snap photos every half second, using near-infrared lights (which are invisible to the human eye) as a covert flash.” The future of drones themselves, Sandia National Laboratories recently told Wired Magazine, is “multi-modal.” Drones will fly, but they will also hop, drive, or swim in the same mission.
Drones are but a particularly controversial example of a broader trend toward increasingly autonomous and mobile surveillance technology. I have told folks in government who’ve asked that perhaps “robotic surveillance technology” is a better, if difficult, target. Better, because at least this language provides a hook for the wide variety technologies available to law enforcement and the private sector. Difficult, because drawing the line between problematic “robotic” technology and a handheld or dashboard camera is a nontrivial exercise.
My real hope is that we take the rare opportunity of a public outcry over surveillance tech to acknowledge that American privacy law is increasingly outdated in general. Should technology be able to scan your belongings, even your house, to see if you’re carrying something illegal? Does going out in public, or posting information online, mean that the government should be able to follow you? Our heads have come out of the proverbial sand, thanks to drones (and an NSA contractor). Let’s not bury them again until we address the problem.