On May 19, 2016, the National Telecommunications & Information Administration (“NTIA”) issued a document outlining voluntary best practices for the non-commercial and commercial use of unmanned aircraft systems (“UAS”), or drones.  The NTIA drafted the document, titled “Voluntary Best Practices for UAS Privacy, Transparency, and Accountability” (“Best Practices”), in response to a Presidential Memorandum issued more than a year ago.

The Presidential Memorandum, issued on February 15, 2015, and titled “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems,” primarily addressed the use of drones by federal agencies to collect information.  The Memorandum stated that such collection must be done in a manner that is consistent with the U.S. Constitution and the Privacy Act of 1974 (5 U.S.C. § 552a).  In addition, the Presidential Memorandum, § 2(a), “established a multi-stakeholder engagement process to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private UAS use.”

The Presidential Memorandum instructed NTIA to undertake this multi-stakeholder engagement process to “develop a framework regarding privacy, accountability, and transparency for commercial and private UAS use.”  The Presidential Memorandum explicitly stated that the multi-stakeholder engagement process “shall not focus on law enforcement or other noncommercial governmental use.”  The Best Practices were the result of this process.

The Best Practices were developed and agreed to by a diverse group of stakeholders, including privacy and consumer advocates, industry, news organizations, and trade associations.  The Best Practices outlined five voluntary best practices:

1. INFORM OTHERS OF YOUR USE OF UAS:  UAS operators should make a reasonable effort to provide prior notice to individuals of the general timeframe and area that they may anticipate a UAS intentionally collecting covered data.
2. SHOW CARE WHEN OPERATING UAS OR COLLECTING AND  STORING COVERED DATA:  In the absence of (a) a compelling need to do otherwise or (b) consent of the data subjects, UAS operators should avoid using UAS for the specific purpose of intentionally collecting covered data where the operator knows that the data subject has a reasonable expectation of privacy.
3. LIMIT THE USE AND SHARING OF COVERED DATA:  UAS operators should not use information collected by a UAS that identifies a particular person (“covered data”) for the following purposes without consent:
   1. employment eligibility
   2. promotion or retention;
   3. credit eligibility;
   4. health care treatment eligibility.
4. SECURE COVERED DATA:  UAS operators should take measures to manage security risks of covered data by implementing a reasonable safeguard program.
5. MONITOR AND COMPLY WITH EVOLVING FEDERAL, STATE, AND LOCAL UAS LAWS:  UAS operators should ensure compliance with evolving applicable laws and regulations and UAS operators’ own privacy and security policies through appropriate internal processes.

The Best Practices also include an Appendix titled “Guidelines for Neighborly Drone Use,” which contains common-sense suggestions for drone use by individuals, such as: “If you can, tell other people you’ll be taking pictures or video of them before you do,” and “Don’t fly over other people’s private property without permission if you can easily avoid doing so.”

NTIA does not intend to influence legislation with the Best Practices, stating that the “Best Practices are also not intended to serve as a template for future statutory or regulatory obligations.”

The voluntary Best Practices can be found here.

The Presidential Memo can be found here.

Reporter, Stephen Abreu, San Francisco, +1 415 318 1219, sabreu@kslaw.com