by Matt Waite
Like many technological innovations, this one captured our imaginations and made us a little uncomfortable at the same time.
Imagine: A camera that goes with you wherever you go. It’s small. It’s easy. In a snap, you can capture moments like never before. No more bulky equipment — just push the button and create a memory.
Consumers were amazed, and began buying them by the truckload.
But many were also ill at ease. If people can take it anywhere, then I can be photographed in places I don’t expect a camera. I could be photographed in a private moment. Or without me ever knowing.
If you’re thinking about camera phones that were introduced in 2002, think earlier. Think a century earlier. It’s 1900, and the camera is the Kodak Brownie. And while people were buying them in the thousands, society was convulsing with how to deal with them.
A brief 10 years earlier, a Harvard Law Review article called “The Right to Privacy” written by future Supreme Court Justice Louis Brandeis laid out the foundations of what we now understand as privacy law. So the concept of a legal framework around privacy was brand new when the Brownie came along.
With the Brownie, people worried about being photographed on the streets, in their homes through windows or elsewhere without ever knowing. In fact, cities posted armed guards at swimming beaches to keep Brownie clutching sun-soakers away so they couldn’t photograph people in their bathing clothes.
While it’s fun to look back through our modern eyes and snicker at people getting so upset about commonplace cameras, we aren’t so innocent. From my vantage point, as the founder of the Drone Journalism Lab at the University of Nebraska-Lincoln, it looks like we’re repeating the same mistakes our ancestors did. Our forebears overreacted with cameras, and they overreacted when people first started flying airplanes. Today, technology has allowed us to put cameras on a flying thing — we call them drones — and we’re behaving much like those people we were just laughing at.
We’re repeating almost the same mistakes.
Everyone needs to take a deep breath and learn a lesson from history. When we get into a legal arms race with technology, we end up looking a little silly.
Three years after the Brownie arrived, the Wright Brothers took off from Kitty Hawk, and again set the world’s imagination on fire.
And just like the Brownie, the idea of flight set off a series of decisions that, in hindsight, weren’t very smart. The first? The federal government punted regulating flight from state-to-state, and for more than 20 years, each state developed its own rules for flight. What that meant was if you took off in one state and went to another, you might be required to have two different licenses, follow different rules and register your aircraft in both states. It turned the country into a patchwork of rules that held flight back. It was too hard to go from point A to point B in the air, so few did. It wasn’t until Congress passed the Air Commerce Act in 1926 that a nationwide set of rules went into place. The modern day FAA didn’t come into existence for another 30 years.
While the government sorted out the regulatory side of things, people worried about noise, about airplanes falling from the skies and they worried about pilots dropping by to peer into private places, like backyards. Airplanes revived the argument about who owns the skies that started in 1783 when the first hot air balloon launched. The Romans said, “he who owns the land owns the skies above,” and that was the basis of property law for centuries. But was that ever true? And if it is, isn’t that airplane flying over my property trespassing?
The answer came in 1947: No. In a case over World War II era bombers and suicidal chickens, the Supreme Court said that claiming ownership of the skies “has no place in the modern world.” Airplanes can’t make a property unlivable — that’s called a taking — but they aren’t trespassing when they fly over.
Fast forward to today.
The FAA has been slow to regulate drones, so the states and even cities have stepped in, creating a patchwork of rules — some of them clearly unconstitutional — that will take years to unravel, just like we did after Kitty Hawk.
States and cities, fearing a swarming drone menace that has yet to emerge, are considering (or have already passed) laws that criminalize children with toys. In Texas, if you photograph your neighbor’s house with a drone, even if by accident, and post it on Facebook, you’re a misdemeanor criminal. A bill in Nebraska would have made flying over your neighbor’s property with a drone — any drone, no matter how small — a trespassing crime. Children used to worry about losing a football over the fence. Now if the drone crashes over the fence, it’s prima facie evidence of a crime.
My advice? Everyone needs to take a deep breath and learn a lesson from history. When we get into a legal arms race with technology, we end up looking a little silly. The Republic carried on after cameras. Indeed life got better with airplanes. Drones, too, will take their place as a useful tool in society. Like all technologies, it’s not the technology we need to worry about, it’s what people do with it that matters.
An invasion of privacy or the enjoyment of our property is an invasion, no matter how it’s done. Worry about that, not how it happens.