to drones that collect, use and share
personal information such as the pre-
cise geolocation data of an individual
or mobile device, including but not
limited to GPS-based, WiFi-based or
cell-based location information, or
photos or videos of identifiable indi-
viduals. Second, drones should not be
collecting personal information about
a person from a place in which the
person has a reasonable expectation
of privacy. This would include collect-
ing information from inside a person’s
home where the home’s interior can-
not be seen from adjacent property or
from above.
Visions of drones hovering outside
bedroom windows and over fenced
backyards drove people to lobby the
By Jamie Nafziger, Partner, Dorsey & Whitney LLP
Federal Aviation Administration (FAA)
to add privacy protections to its recent
n light of the recent relaxation of those who want to collect and use that drone regulations that took effect at
federal restrictions on the com- information need to explain what is the end of August 2016, but the FAA
mercial use of drones, enthusiasm collected, how it is used and with whom declined. Drone privacy was included
about the many potential uses of it is shared. A drone operator must in the FAA Reauthorization Act passed
drones is growing. At the same time, obtain the individual’s consent prior to by the Senate in April 2016, but Con-
producers and growers have legitimate collecting their personal information. gress removed most of the privacy
concerns about their legal rights in con- Finally, some data is freely available and provisions from the FAA Extension,
Safety and Security Act of 2016, as
nection with drones flying over their receives no legal protection.
A cattle producer or crop grower has enacted. One privacy provision that
property. To understand those rights, it helps likely learned a lot about their land survived requires the FAA to convene
to consider the types of data a drone through years of working with it. As industry stakeholders to develop stan-
and related software might collect. A long as that knowledge has been kept dards to enable remote identification
of drone operators
drone might collect photos, videos, secret, it would like-
Cattle producers and and owners. The
other images, geographic coordinates ly receive legal pro-
stakeholder plan,
and locations of mobile devices such as tection as a trade
growers also have
once it is devel-
smartphones. The software associated secret. Similarly,
privacy rights that
oped, should help
with a drone might collect historical historical records
information about a piece of land, the of farm operations
would come into play p e o p l e i d e n t i f y
drones that violate
and results, so long
producer or grower’s contact informa-
in connection with
privacy. However,
tion, financial information when a pro- as they have been
privacy advocates
using drones.
ducer or grower pays for a drone-related kept secret, would
believe drone iden-
service and many other pieces of data. likely be protected
as trade secrets. On the other hand, tification standards are not nearly
The software might also translate sen-
sor images into actionable data such as farm information collected from a sen- enough federal privacy protection and
where cattle are located, the tempera- sor or camera on a drone likely would continue to lobby for greater protec-
ture of a pile of corn or which part of a not receive any legal protection if it tion.
Given these legal complexities, there
were collected from a place where the
field is growing best.
are two key documents a grower or pro-
Under U.S. law, different types of data public has the right to be.
Cattle producers and growers also ducer should review in connection with
receive different types of legal protec-
tion. If something is a trade secret, the have privacy rights that would come allowing a drone to operate on their
person who has developed information into play in two ways in connection property: a data use agreement or data
and has kept it secret owns it. If infor- with using drones. First, existing
CONTINUED ON PAGE 38
mation is private, personal information, federal privacy standards will apply
Legal Issues
Regarding Data
Collected by Drones
I 36
Nebraska Cattleman
December 2016