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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