On October 14, I had the opportunity to join a panel at the ACLU’s 2015 Computers, Freedom, and Privacy Conference to discuss the ongoing effort to commercialize drones into the national airspace.
I was joined by John Verdi, Director of Privacy Initiatives at the National Telecommunications and Information Administration, Alan McQuinn, Research Assistant with the Information Technology and Innovation Foundation, and Alan Butler, Senior Counsel for the Electronic Privacy Information Center. Matt McFarland, Editor of Innovations at the Washington Post, moderated the panel. Although there are many issues associated with unmanned aerial systems (UAS), most of our conversation centered on the privacy concerns associated with this new technology.
Privacy is, indeed, a significant factor in the ongoing discussion surrounding domestic, private drones. However, as I noted in my talking points, privacy is just one of many issues in this space. Safety and security, an innovation- and investment-friendly environment, and economic growth and prosperity are all equally important areas for consideration when assessing the proper path forward vis-a-vis public policy. That’s why I advocated for permissionless innovation as the ideal policy disposition that regulators at the FAA should adopt when considering any new rules for this nascent technology.
Permissionless innovation is the idea that innovators, entrepreneurs, and tinkerers should not be hamstringed by preemptive regulations before there is a clear, demonstrable need for regulatory oversight. The growth of the early commercial Internet is the great success story of permissionless innovation; there’s no reason to believe this formula could not also be applied to the airspace, the next great platform for disruptive innovation.
In a recent piece for Democracy Journal, Larry Downes provides regulators with a dose of this wisdom.
As the disruptors appear, the best course of action is not to intervene, but to watch, wait, and collect actual data about how emerging markets are or are not working—what FTC Commissioner Maureen Ohlhausen calls “regulatory humility.”
Regulators, like the rest of us, are human. They have no crystal ball with which to foresee the future and anticipate future harms resulting from new technologies. There is no means for escaping the reality that the future is unknowable. Of course, that doesn’t mean we can’t craft broad, baseline rules to establish certainty and clarity in the emerging market for drones. It simply means that we shouldn’t seek “silver bullet” solutions to problems we either don’t understand, or merely predict ex ante. In other words, we should refrain from fishing for the moon in the water.
Marc Scribner over at the Competitive Enterprise Institute recently released a paper discussing “a pro-market approach to privacy and airspace management.” His perspective, and one that I share, is that regulatory forbearance is the wisest regulatory approach at this time. He notes: “ Exercising policymaking restraint as this nascent technology evolves may prevent early political missteps that have the potential to lock in counterproductive legal regimes.“
One solution that regulators could pursue would be to imitate the regulatory regimes of other countries that have already permitted the use of private drones for commercial purposes. My choice? The Canadian system.
Transport Canada (TC), the Canadian equivalent of the FAA, has a largely permissive approach towards drones. As I pointed out in a recent article for CapX, TC “permits the commercial use of any drone weighing less than 2 kg without a TC exemption. For those drones weighing 2.1 – 25 kg, TC exemptions are also waived, though the agency mandates that it be notified of the flight plan in advance.” Additionally, many of the same restrictions currently being floated by the FAA, such as restrictions on time-of-day and visual-line-of-sight operations, have been incorporated into the Canadian regulatory framework. While future regulations in this space may be needed, the commercial UAS space would be better served by a set of rules that are simple and broadly-applicable. Then, as we discover problems requiring regulatory redress, rules can build on top of the initial framework.
There are clear disagreements between more vociferously privacy-conscious advocates and those who place greater emphasis on the economic and social innovations vis-a-vis drones. However, we should promote airspace regulations that offer, as Richard Epstein once quipped, “simple rules for a complex world.” The FAA should make haste in crafting these simple rules so American innovators and entrepreneurs can start developing this exciting and revolutionary market. Let’s free the skies for commercial drones.