Drones and the law: Interview with Clayton Rice

Q. You are a criminal and wiretap lawyer in Canada, what is your interest in drone technology?

I actually came into the UAV conversation very late. Of course, I read and listened to the news coverage but it was mostly in the background. The dominant application of drone technology seemed to be by the military. More recently, I have been paying attention to the burgeoning controversy over the commercial and law enforcement uses. The use of drones by the police for surveillance, motor vehicle tracking, and searches and seizures is of particular interest to me because I am a wiretap lawyer and a wiretap is a search and seizure. This engages the constitutional right to be secure against unreasonable searches. A wiretap is frequently used by the police in tandem with surveillance. So I would think that law enforcement and intelligence agencies would be extremely interested in any technology that could enhance accuracy and conserve human resources.

Q. You have a great quote on your web site from Benjamin Franklin, “They who give up liberty for security deserve neither liberty nor security”. How does this quote relate to your thoughts on drones?

This is a good question. And not easy to answer briefly. In the post 9/11 world we live in, we are bombarded almost daily with news about terrorism. The Boston Marathon Massacre trial is currently underway. The Charlie Hebdo events in Paris are still vivid. Last fall, Michael Zehaf-Bibeau, a lone gunman, shot and killed Cpl. Nathan Cirillo who was standing guard at the National War Memorial in Ottawa. He then ran into the Centre Block Building of the Canadian Parliament where he was killed in an exchange of gunfire. The response of government is often to appease public concern by enacting legislation that is more intrusive on constitutionally protected rights. This is certainly the case in Canada where the government has introduced new anti-terrorism legislation that gives more power to Canada’s spy agencies with inadequate oversight. This legislation has provoked substantial public debate. The Patriot Act in the U.S. and the National Security Agency metadata dragnet program leaked by Edward Snowdon are other good examples. As tragic as such events are, and as seriously as we must take threats to national security, I think Ben Franklin might say — they who give up liberty for security, by putting an FBI drone outside every bedroom window in the nation, deserve neither liberty nor security. As Professor Stephen J. Schulhofer of NYU has argued: “A surveillance society that places public safety over all other concerns inevitably chills political freedom, constrains creativity, and inhibits our personal lives.”

Q. In your opinion, what are the best commercial uses for drone technology commercially?

I’m not qualified to offer an opinion on what the best commercial uses might be. But from what I’ve been reading, it seems that the uses are virtually limitless. Agriculture, forestry (fire fighting), wildlife management, aerial surveying and mapping, highway traffic enforcement, mining, manufacturing and the film industry have all received commentary in the media.

Q. Drone technology is evolving rapidly and will meet many commercial needs. What role should the law play in the industry? Should these laws be at a national level or be handled by global bodies such as the United Nations?

The law will play a regulatory role as it does in the fields of aeronautics and transportation. I expect it will be a multi-tiered system with divided jurisdiction at the federal and state levels (provincial in Canada). I doubt very much that the law will lead public policy in this field. It has already lagged behind the advancements in the technology. I think the Australians have actually moved ahead of us (U.S. and Canada) where the certification of commercial drones (Remotely Piloted Aircraft) is regulated by the Civil Aviation Safety Authority (CASA). I can see global bodies like the UN being involved. But treaties or UN General Assembly resolutions would only serve as standards unless incorporated into legislation.

Q. Are you a drone hobbyist?

No. I think the closest I’ve come to a drone was flying a kite in a lightning storm as a boy. It was another one of my Ben Franklin experiments.

Q. What books would you recommend that people who are interested in drones check out?

I’ve been on the hunt. There are quite a few technical publications like instruction manuals, design and how to build and operate a drone. But there is not much available of general interest. An anthology that is quite good, and has received good reviews, is: “’ edited by Peter L. Bergen and Daniel Rothenberg. The essays present an interdisciplinary perspective. However, it is of interest more to someone like myself rather than the hobbyist.

Q. What questions should I have asked you about that you’d like to share your thoughts on?

Maybe I’ll return to an issue I touched on earlier. And that is the question whether we have a reasonable expectation of privacy in public places. That question really focuses the drone technology for constitutional purposes. The Supreme Court of Canada held in a landmark case in 2014 that the concept of privacy as anonymity permits us to act in public but to preserve freedom from identification and surveillance. We may expect to be causally observed but not subjected to intensive surveillance. When we go out the front door, we seek to merge into the situational landscape. This rule is much broader than how the United Sates Supreme Court has interpreted the Fourth Amendment. Surveillance drones equipped with facial recognition technology used by law enforcement will present new challenges to the right to be secure from unreasonable search and seizure.