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By Kevin D. Pomfret, Robert E. Korroch & Anthony H. Anikeeff
There has been a great deal written about the Federal Aviation Administration’s (FAA’s) recent release of proposed regulations concerning the commercial use of Unmanned Aerial Vehicles (UAVs) – or drones. Much of what has been written has quite accurately pointed out that the proposed regulations are a step in the right direction. However, there has been much less attention paid to a memo released by the White House in conjunction with the FAA’s announcement that will have a significant impact on how government contractors can use UAVs.
The document, titled “The Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems,” is intended to address potential privacy-related concerns associated with UAVs. The memorandum contains several provisions that will affect federal contractors. For example, federal agencies are required to verify the existence of rules of conduct and training for both government personnel and contractors who work on UAV programs. They are also required to develop procedures for reporting suspected cases of misuse or abuse of UAV technologies. In addition, agencies are directed to establish policies and procedures, or confirm that policies and procedures exist, to provide meaningful oversight of individuals (presumably including federal contractors) who have access to sensitive information collected by UAVs. It is important to note that, although the term “sensitive information” is not defined, it is more expansive than the types of personally identifiable information (PII) generally protected in the United States.
The memorandum directs agencies to provide a status report on their efforts within 180 days. Within one year, they must make their policies and procedures public. Federal contractors should anticipate that, although their government customer desires the benefit of UAV technology, as in other situations, the customer will endeavor to shift risks and compliance responsibilities to contractors. As a result, they should pay close attention to the development of policies and procedures as these could have a significant impact on their ability to collect and use data from UAVs. Federal contractors may wish to help shape these policies through the rules formation that will likely develop over the coming months. In addition, they should consider taking part in the multi-stakeholder process being established by the National Telecommunications and Information Administration (NTIA) in order to develop privacy guidelines for commercial use of UAVs. The NTIA has requested public comments pertaining to several key aspects of this multi-stakeholder process. The comment period will close on April 20, 2015.
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