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USA: Pandemics, privacy, and drones

Long before COVID-19 ('Coronavirus'), legal and policy analysts considered the potential impact of widespread deployment of drones. Drones can view hard-to-reach locations such as the tops of tall buildings under construction or pipelines winding through remote areas and it is, after all, better to send in an expendable, maneuverable unmanned vehicle than to risk life or limb to gather information. What is more, the science-fiction appeal of drone fleets making pickups and deliveries is hard to deny. But the potential for drones to facilitate invasions of privacy has also long been clear. Christopher W. Savage, Partner at Davis Wright Tremaine LLP, identifies the potential uses of drones in the context of the Coronavirus pandemic and undertakes a detailed legal analysis of privacy concerns that such uses may entail.

Predrag Vuckovic / Signature collection / istockphoto.com

Applicable law

The FAA Reauthorization Act of 2018 ('the Act') states that '[i]t is the policy of the United States that operation of any [drone] shall be […] in a manner that that respects and protects personal privacy consistent with the United States Constitution and Federal, State and local law.' The Act also declares that if a person uses a drone for compensation or hire, or in the furtherance of a business enterprise in a manner that violates its privacy policy, this shall be considered an unfair and deceptive practice in violation of the Federal Trade Commission Act of 1914. In addition, the Act directs the Comptroller General to carry out a review of the privacy issues and concerns associated with the operation of drones. These provisions, however, do not establish any new or special privacy rules. Instead, they simply confirm that existing privacy obligations apply to drones.

Drones and Coronavirus: privacy concerns

The Coronavirus pandemic has brought some drone-related privacy concerns to the fore, but there are no specific laws or regulations governing the use of drones as part of a public health response to the pandemic. However, three potential pandemic-related uses raise particular privacy issues.

Firstly, drones can be used to help enforce social distancing rules: a drone would monitor areas where people gather and, via a loudspeaker, direct people to spread out, wear masks, etc. Secondly, drones can be equipped with thermal sensors to identify people with a fever who might be infected. And finally, drones could be equipped with facial recognition technology to facilitate contact tracing by identifying people with whom a known infected person has been in extended contact. Each of these applications raises distinct privacy concerns.

Enforcement of social distancing rules

A public agency might operate drones where people congregate - parks, beaches, popular neighbourhoods - and if the drone operator (or, conceivably, a sufficiently sophisticated algorithm) saw too many unmasked people too close to each other, a loudspeaker on the drone would announce the problem and direct people to put on masks and spread out.

This scenario does not raise any direct privacy issues, for two reasons. Firstly, it would only be used in public places where people's expectations of privacy are limited. In addition, and more importantly, this scenario does not entail identifying or tracking any particular individuals. Instead, on its own, this use of drones would be situational and anonymous.

Identifying active cases via thermal imaging

One symptom of Coronavirus is fever, and existing technology (subject to false positives and negatives) can identify people with a fever from a reasonable distance - 150 feet or more. This has led to the deployment of thermal imaging technology in some airports, and to suggestions that drones could use this technology to identify possibly infected individuals in public areas. The privacy implications of the two scenarios, however, are quite different.

In airports, at least since the September 11 attacks, people generally accept that they are subject to searches and screening. Being pulled aside for further screening based on a thermal imaging device suggesting that someone might have a fever is, arguably, a relatively minor intrusion. Moreover, the accuracy of the readout from thermal imaging equipment can be easily confirmed by using a more conventional thermometer.

But being subject to thermal imaging in public areas via drone technology seems different. Expectations of privacy are necessarily diminished in public. Even so, no one expects intimate details of their body to be available to authorities simply by virtue of leaving home, and having one's temperature remotely monitored could be viewed as intrusive. Perhaps this situation would be governed by the logic of Kyllo v. United States, 533 U.S. 27 (2001), which required that police obtain a warrant before using thermal imaging technology to gather data from outside a home, as a proxy for discerning human activity in the home (heat lamps for growing marijuana). Supreme Court cases requiring a warrant for a blood test, absent exigent circumstances, might also be relevant (e.g. Missouri v. McNeely, 569 U.S. 141 (2013)). On the other hand, the Supreme Court has suggested that medical testing not undertaken for law enforcement purposes might not require a warrant (Ferguson v. City of Charleston, 532 U.S. 67 (2001)) (testing cannot qualify for "special needs" exception to warrant requirement when undertaken in coordination with the police).

This logic might cover warrantless temperature screening to assist in addressing the pandemic. Indeed, in the specific context of Coronavirus, the Supreme Court refused to enjoin applying restrictions on large public gatherings to churches, notwithstanding claims that such restrictions violated the First Amendment. South Bay United Pentecostal Church v. Newsom, 590 U.S. (2020). Chief Justice Roberts stated that he would defer to public health officials regarding the need for the restrictions - which interfered with First Amendment rights to some extent - given the public health emergency. That same deference might be accorded to public health officials asserting that public temperature monitoring is also useful, even though it might constitute a warrantless search under the Fourth Amendment.

Thermal imaging technology is not a 'silver bullet,' which also matters when assessing privacy concerns. Before accepting the arguable invasion of privacy thermal imaging represents, the benefits of using the technology should be assessed. Here, those benefits seem attenuated. Not everyone infected with Coronavirus has a fever; many people have fevers unrelated to Coronavirus; and the technology is far from 100% accurate. If someone detected as having a fever is pulled aside by a government health official for further screening, that implicates people's right to be left alone while minding their own business in public. A broad analogy might be to the constraints on police 'stopping and frisking' someone. Under Terry v. Ohio, 392 U.S. 1 (1968), police must have a "reasonable suspicion" that a crime is being, or has been, committed before subjecting someone to a stop and frisk. Would an indication of fever by a less-than-fully-accurate imaging device, which may or may not indicate the presence of Coronavirus, be a 'reasonable' basis for (in effect) a government official accosting someone on the street?

Legal requirements aside, the one instance of public authorities using drones to monitor fever and other health indicators reported in the press did not end well. The town of Westport, Connecticut, announced that it would participate in a pilot program to use drones for this purpose, but abandoned its plans almost immediately in response to strong public objections.

Using facial recognition for contact tracing

A highly intrusive potential use of drones would be to track specific individuals identified as infected in order to determine others they had exposed to the disease by virtue of extended contact. The idea behind this scenario would be to deal with the fact that traditional contact tracing methods do not scale to large groups of infected people potentially infecting even larger groups with whom they are in contact.

The privacy problems with this scenario, however, are evident. This use of drones would require identifying specific individuals, recording information about them (where they were and whom they contacted), and then taking action (such as individual quarantine orders) based on that surveillance, analysis, and recording. Even granting the public health benefits of contact tracing, people would inevitably be concerned that the information would be stored indefinitely, shared with law enforcement for non-public-health purposes, or otherwise misused. The Supreme Court has held that the government needs a warrant to obtain electronic location data because "an individual maintains a legitimate expectation of privacy in the record of his physical movements" (Carpenter v. United States, U.S., 138 S. Ct. 2206 (2018)), a concern that would appear to apply in this scenario. Moreover, just as thermal imaging is not a technological silver bullet, neither is facial recognition. A key concern is that the technology just is not accurate enough, a concern highlighted by reports that the performance of the technology is particularly flawed when applied to people of colour and other minorities.

Perhaps as a result of public awareness of these concerns, no governmental bodies within the US have, as far as we are aware, tried to make use of drones for this purpose.

Other uses of drones

Not all Coronavirus-related uses of drones raise privacy concerns. For example, drones are being used to transport samples from remote Coronavirus testing sites back to medical labs for analysis. Moreover, with any number of retail businesses shut down due to the pandemic, drones can potentially handle routine package deliveries. Use cases like these will likely continue, even after the pandemic subsides.

Christopher W. Savage Partner
[email protected]
Davis Wright Tremaine LLP, Washington D.C.