Robots, Micro-Airspaces, and the Future of “Public Space”
Peter M. Asaro
School of Media Studies, The New School
Center for Internet & Society, Stanford Law School
Diana Marina Cooper
LaBarge Weinstein LLP
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In United States v. Causby, the Supreme Court conceptualized airspace as a “public highway.” In the same decision, the Court recognized that landowners must be able to “exercise exclusive control of the immediate reaches of the enveloping atmosphere” in order to exercise full enjoyment of their property. The precise boundaries of public and private space have always been contested; however, the lack of clear legal definition of “public space” is increasingly problematic given the growing availability and use of drones.
How should the law conceptualize “public space” in relation to drones and robots? Do drones present legitimately new issues for “public space” jurisprudence, or do they simply present issues of scale? Are there micro-airspaces surrounding individuals and special places that merit the recognition of an increased private interest in airspace? In what contexts should the law privatize or enclose portions of the “public highway” in favor of protecting privacy rights? How can the law reconcile a largely public airspace with diverse privacy expectations on the ground?
Should there be restrictions on the use of thermal, infrared, millimeter, or other advanced sensor technologies in the airspaces around public and private spaces? And, to what extent can local and state authorities develop or effect tailored regulations surrounding personal and commercial use of airspace?
In this paper we investigate the phenomenon of state and local jurisdictions taking on the privacy issues raised by small drones and their use by law enforcement or commercial entities. It remains to be seen whether or how Federal authorities, and the FAA in particular, may seek to challenge these new laws. These new potential authorities in the regulation of airspace may create great complexities in the varieties of airspaces and what is permissible in them, but this is not unprecedented. States issue drivers licenses, and local governments established speed limits, and so these “mini-airspaces” may be quite appropriate. Why should airspace be forced into a one-size-fits all model of regulation by a regulatory agency that does not seem sensitive to the needs and desires of numerous and varied localities?
We also raise the question of whether “airspace” is solely or best considered to be a feature of real property such as publicly or privately owned land, or might instead and better be thought of as a feature also belonging to individuals.
How might we envision a “micro-airspace” of one’s own person under which the observation, recording, archiving, and transmission to other parties of images or information obtained about you requires various forms of consent, notification, outright prohibitions, strict limitations on the retention of images or other data, and so forth. Such restrictions could also be specified in terms of identifiability of those recorded, or the use of various technologies or sensors, such as infrared or millimeter wave sensors.
In this paper, we consider the various legal precedents which might inform us as to the viability of such regulations.
We also consider the various metaphors of “airspace” in play in these cases, how privacy has been conceived in crucial judgements, and whether and how we might articulate a legal framework for “micro-airspaces” that provides
a regulatory framework that both protects individual rights, the “public” nature of public space, and provide for the introduction of public and commercial UAVs and other sorts of remote, semi-autonomous and autonomous robots with recording capabilities that can respect these rights and spaces. We contend that it is possible to have robust protections of individual rights and collective public spaces without onerous or industry-killing regulatory policies, and “micro-airspaces” could be part of that solution.