Future Tense

In the Race for Our Skies, a New Drone Testing Program Just Gave a Big Boost to Big Business

Drone projects recently greenlit by the DOT give corporations a major leg up. And law enforcement may not be far behind.

A drone is flown for recreational purposes in the sky above Old Bethpage, New York on August 30, 2015.
A drone is flown for recreational purposes in the sky above Old Bethpage, New York, on Aug. 30, 2015. Bruce Bennett/Getty Images

On May 9, the Department of Transportation announced the first 10 project sites it chose to participate in its new three-year Drone Integration Pilot Program aimed at expanding the testing of new drone technology in a select number of local, state, and tribal jurisdictions.

Selected from 149 lead applicants and over 2,800 private sector “interested parties,” they’re an eclectic bunch: the Choctaw Nation of Oklahoma; projects in the city of San Diego; the Innovation and Entrepreneurship Investment Authority in Herndon, Virginia; the Lee County Mosquito Control District in Florida; the Memphis–Shelby County Airport Authority in Tennessee; the North Carolina, Kansas, and North Dakota departments of transportation; the city of Reno, Nevada; and the University of Alaska–Fairbanks all saw their specific public-private partnership proposals get the greenlight. The projects include plans to test various kinds of unmanned aircraft systems (UAS for short, as they are formally known), including drone-based mapping, inspections, traffic and weather monitoring, commercial and medical delivery, and law enforcement surveillance systems. Selected applicants will be given special attention from the Federal Aviation Administration. This will allow them to, among other things, more quickly secure waivers for flights that go beyond what current drone regulations permit, like night flights or flights beyond “visual line of sight.” In exchange, participants agreed to share information with the federal agencies that might help craft regulations for more drone-friendly skies in the future.

The administration’s initial selections weren’t just notable for the places, but also for the big-name companies signed on as partners in the chosen proposals, which include Google parent company Alphabet’s Project Wing, State Farm, AT&T, Intel, Airbus, Uber, Apple, drone-maker PrecisionHawk, CNN, FedEx, Intel, and General Electric. Surprisingly, Amazon, famous for its big bets on delivery drones, is missing, for reasons that some speculate are motivated by Trump’s well-known animosity toward Jeff Bezos. So is Chinese tech company DJI, which dominates the consumer drone market but landed in hot water over accusations that its products send sensitive information back to China—a claim the company has strenuously denied, although that hasn’t stopped calls for the U.S. military to stop using DJI products, Whatever the case, the pair, I suspect, will be fine—and may even be permitted to join the program in another potential round of DOT selections. There were also notable geographic exclusions. The DOT didn’t select any applicants from Northern California, the Pacific Northwest, or the entire Northeast portion of the country, despite a number of high-profile applications. Lawmakers from New York were particularly angry about their exclusion (Sen. Chuck Schumer, for one, called the Northeast’s total shutout “head-scratching”) and are demanding a clear explanation from the administration.

Why the DOT chose these particular companies and locations is unclear. But something that is clear from the selections: Big corporations just got a major leg up in the push to open up our skies to this robotic aviation revolution. And law enforcement may not be far behind.

Drones are big business, and the companies selected for this groundbreaking pilot program are, with the notable absences of DJI and Amazon, among the biggest players out there. While many smaller drone businesses that offer photography, mapping, and other aerial data services submitted their names to the program’s “interested parties” consideration list, few were chosen. Because companies that participate in the program will be able to get quicker approval for boundary-pushing—and potentially lucrative—drone projects and experiments, it may represent an unfair advantage for the tech giants selected.

There’s also reason to worry that the program could give big corporations undue influence over local and federal rules. Drone startups and small businesses, already facing profit drops as drones become more commonplace and easier to use, have been complaining for some time about the FAA’s tendency to defer to larger companies when it comes to making rules around these unmanned aircraft systems. And now they’re worried about how regulations under consideration now may further unfairly favor the deepest pockets or the most well-connected. This includes moves like potentially requiring an expensive instrument-rated pilot’s license to fly a drone beyond the visual line of sight (something not permitted under current FAA rules), and carving out exceptions for hand-picked large companies that allow them test out new services before everyone else.

This problem is compounded when you consider the ways the federal government is also working with big, private companies to create the underlying infrastructure to make sure the millions of drones expected to be zipping through our skies will fly safely (as in, without crashing into each other or any other unintended things, such as passenger aircraft, buildings, and people’s heads). Most significantly, Amazon, Google, General Electric, and Boeing are currently collaborating with NASA to develop a privately funded and operated air traffic control network just for drones. It’s a system we desperately need—and that private industry can certainly move more quickly on than the lumbering, unstably funded FAA. But it’s also not difficult to imagine what might get the right of way. In this, 2018, the Year of Shattered Technological Trust, forgive me if I’m not sure that the biggest companies in the drone industry will always have the best interests of citizens and smaller players at heart as they influence the regulations of the future.

The new Drone Integration Pilot Program hints at another worrisome trend: the potential popularization of small drone use among law enforcement. This go-round, the Department of Transportation largely passed over proposals explicitly focused on law enforcement, though many projects did appeal to broader public safety applications like emergency response. One exception? The proposal from the San Diego region, which, per the FAA’s website, focuses in part on “border protection.” Though there’s little available detail on what this might look like in practice, the San Diego Union-Tribune reports that the city will partner with AT&T, Qualcomm, and General Electric to “manage cross-border air traffic and commercial deliveries after dark.” Drone cloud-services company Cape will also partner with the Chula Vista Police Department to “dispatch drones to fires, crime scenes, and major accidents to gauge if additional help is needed.”

Things could have gone—and still could go—in an even creepier direction. Consider Louisville, Kentucky’s proposal to create a fleet of aerial surveillance drones programmed to dispatch themselves to spots of reported gunfire and collect and send back video of suspected crime scenes (and everyone else unlucky enough to be around) to police. Though Louisville’s proposal didn’t make it into the drone pilot program for this initial pass, the gunshot response drone plan did receive an air of legitimacy when it won funding from Bloomberg Philanthropies’ 2018 U.S. Mayors Challenge. Earlier this year, according to Wired, the International Association of Chiefs of Police’s annual tech conference included a seminar on this “developing public approbation” for drones. And just this week, as Slate’s April Glaser detailed, drone-maker DJI and law enforcement tech company Axon announced they’re going to team up to sell camera-equipped drones to law enforcement agencies around the globe. Though we have yet to see how this interest fully pans out in the current and potential future pilot program selections, it’s a space worth attention.

The DOT’s drone integration program’s potential to expand big corporations’ and law enforcement’s lead in this space becomes even more significant in the context of the battle over local vs. federal airspace control, since it seems the latter will be the bigger player in (literally) determining what flies. Though many cities, counties, and states have introduced their own drone regulations, these local rules may not hold up in court. The FAA claims it has the superseding regulatory authority to regulate navigable American airspace—all the way down to “a blade of grass.” This may sound excessive, but there’s good logic to it: Without overarching federal control, airlines and other civilian aircraft would have to adhere to a mind-bendingly huge patchwork of regulations in every state and municipality they fly over. Many drone professionals believe this “patchwork” would drain resources and stifle progress in their sector, forcing them to navigate a dizzying array of oft-changing rules. I mostly agree with them. Total local control over drone regulations really could make it very difficult to use drones for many beneficial purposes, from monitoring crops to assessing damage after hurricanes.

Yet drone operators have to co-exist with the general public, and that’s where some future turbulence may lie. While most people are less suspicious of drones than they used to be, they’re still not thrilled about them, especially when they’re used by strangers. I suspect many people distrust drones precisely because they feel they have no say over how they are used or what is done with the imagery they collect. It makes sense that citizens want to be able to weigh in on what happens with drones in their localities. In a time of ever-growing public distrust of data collection by both private companies and by government, they probably won’t be thrilled about the expansion of corporate or law enforcement influence, either—especially if there’s little transparency about how drone data will be used. And it’s already showing. According to the National Conference of State Legislators, over 38 states were considering drone legislation in 2017. The majority of these proposals, and most laws and resolutions that have already been passed, focus on privacy. The issue has also made it to the federal level. Two bipartisan bills in the Senate and the House—the Drone Federalism Act and the Drone Innovation Act, both introduced in 2017—would give local governments regulatory authority on drone operations in airspace under 200 feet. While it’s unlikely that Congress will pass these anytime soon, they indicate that plenty of people aren’t happy with local government’s lack of control over drones.

If they wants drone use to to expand and thrive, the industry and the feds would probably do best to make concessions to the average person’s feelings of powerlessness over how drones and the data they collect are used—lest they be subject to overcorrections that could stifle progress for all parties. They could do this by striking compromises that would give state and municipal governments more control over how drones are used in ways that won’t smother the industry. This could conceding ample carve-outs for municipalities to manage particular kinds of operations like emergency use, but also making sure such carve-outs come with a clear system for posting local rules that won’t require hours of digging to know how to comply.

It might also include addresssing public uneasiness over drone technology by passing reasonable federal drone privacy laws. Though certain advocates argue that existing Peeping Tom regulations already cover privacy-violating uses of drone data, we don’t have any federal laws that directly address drone privacy. A well-written and not overly onerous law specific to drones would, in theory, be less nightmarish to navigate for drone users than a patchwork of local regulations that attempt to cover the same issue.

The FAA, for its part, maintains that regulating data privacy isn’t part of its mission. But, considering the ways some lawmakers are getting impatient about the lack of overarching rules, it may not have a say. Massachusetts Sen. Ed Markey and Vermont Rep. Peter Welch introduced drone-specific privacy legislation just last year, which would require the FAA to, among other measures, collect and publicly post “data collection statements” from all drone license applicants, with information about who will operate the drone, where it will be flown, what kind of data it will collect, how long it will retain that data, and whether it will share that information with third parties. Law enforcement agencies and affiliated contractors would also have additional requirements to state how they’d put robust limits on their surveillance use. .Speaking in a Senate Subcommittee meeting in May, Markey liked the FAA’s current approach on drone data privacy to the “hands-off approach applied to companies like Facebook and Cambridge Analytica” that left consumers powerless. Drone industry leaders, for their part, pushed back against the legislation, arguing that it was both overly broad and too specific. I agree with these criticisms. But I also think the drone industry should consider working with lawmakers to write federal drone privacy legislation it can live with.

To be sure, we don’t have much specific information on how the DOT’s Drone Integration Pilot Program, or the subsequent regulations that may come out of it, will handle issues of data security or privacy. The program’s materials instructed applicants to take into account DOT’s privacy policies pertaining to drones (which, among other things, require that drone operators avoid collecting personally identifiable information like imagery, phone, and wireless emissions “to the extent practicable,” and mandate that personal information be deleted if it’s accidentally collected) as well as the National Telecommunications and Information Administration’s Voluntary Best Practices. But it remains to be seen how the agency will interpret, monitor, and enforce such rules, or how they’ll take public complaints into account. It doesn’t seem like there’s much more clarity in individual contracts for the pilot program either. I found and reviewed North Dakota’s memorandum of agreement with the FAA for its program: It requires that the parties must operate in “accordance with applicable privacy laws,” and have privacy policies governing all activities conducted within the agreement. It also requires the participants to create a mechanism to receive and consider public comment on the privacy policies, and to conduct annual review of operations to verify compliance.

This vague language could pose problems for the drone pilot program selectees. Activists in a number of communities are pushing back hard against law enforcement drones in particular. The ACLU and local activist groups in Los Angeles, Boston, and Chicago have all recently spoken out against drone use by police and law enforcement. On the privacy front, they’re worried that the technology will be used for warrantless surveillance of protests and average people, and otherwise reinforce unfair police practices. Privacy advocates are also concerned that data collected by other public agencies for non–law enforcement purposes might be shared with the law enforcement agencies. Those involved in the pilot program should make sure they’re thinking hard about how they’ll shape and explain their policies around privacy and data security with citizens in mind, lest public backlash shape it for them.

The Drone Integration Pilot Program is still in early days, but it’s an intriguing idea on paper. If it functions like it’s official mission proposes, it will provide the FAA and the DOT with invaluable data that can be used to make better, more equitable drone regulations. It’s also possible that the program will, inadvertently or intentionally, expand the power of large corporations in this space, and normalize the use of drones by law enforcement. With all the moving parts, it’s too early to tell how it will play out. But we should all keep watching the skies.