Unmanned aircraft could soon get their debut as the newest journalistic tool, raising new legal and ethical issues related to privacy and newsgathering. But as journalists start to ask questions about how to legally and ethically fly drones, the Federal Aviation Administration is already behind schedule on instituting a new regulatory system for commercial drone use.
Despite slow movement from the federal government, some non-profit journalism organizations and journalism students at a pair of universities have had the first crack at developing drones. That has meant professionalizing what some see as a whole new skill set or even a newsroom title: drone journalist. The types of drones, or unmanned aircraft systems, that are finding their ways into the journalist’s toolkit are typically equipped with a camera and are flown at low heights in order to gain new perspectives on a news story.
The use of drones in journalism was rather obscure until the rumor that gossip website TMZ was looking to get a drone and authorization to fly from the FAA in November 2012. (TMZ and the FAA denied the rumor.) The mere rumor that TMZ might be considering a drone was enough to raise ire, even though the FAA is not issuing commercial licenses. While drones have great potential to help journalists cover disasters such as floods, tornadoes and hurricanes, they also make it easier to keep tabs on celebrities and public figures. And if traditional news organizations like NPR member stations and newspapers get access to drones, it will ultimately mean gossip blogs and celebrity sites will also have access. And until the FAA releases new regulations as soon as 2015, it will be up to non-commercial journalists to establish professional standards.
“Whatever laws the government or the courts come up with, they will be laws that will protect TMZ and The New York Times, and there is no way of getting around that,” increasing the need for journalists to self-regulate the use of drones, said Kelly McBride, a media ethicist with the Poynter Institute.
FINDING A USE IN JOURNALISM
The use of drones for journalism is still new; just two university journalism programs are testing them. And the FAA could slow down the introduction of commercial drones even more as Congress starts to question the use of domestic drones.
“This is democracy in action,” said Matt Waite, professor of journalism and mass communication at the University of Nebraska- Lincoln and founder of the Drone Journalism Lab. “People are concerned about this, and frankly I think they should be. I think you should be worried about your privacy from a lot of perspectives.”
Because so few journalists have the opportunity to work with drones, and legislators are showing increased scrutiny, Waite and others testing the technology are using extreme caution with how they use drones.
“We have a responsibility to be very careful for a lot of reasons. I don’t want to do anything that would prevent journalists in the future from using these for a useful purpose,” Waite said.
Drone journalist Matthew Schroyer recognizes the need to be responsible with the devices in order to protect the next generation of journalists, but he also believes that the benefits of using drones should not be outweighed by unnecessary caution.
“You have to walk a fine line — you don’t want the technology to be abused or intrusive to privacy, but at the same time journalists are trying to report on important events and inform democracy,” Schroyer said. “So anything you do to inhibit a journalist’s ability to report on information in the public’s interest is a negative.”
A WAITING GAME
Even journalism students using drones have to work under FAA regulations, and those rules end up having significant effects on the type of journalism produced. In order to fly drones without having an exploratory license from the FAA, journalists have to work under a hobbyist regulatory system developed in 1981 for model airplane pilots. These regulations require drones to be flown under 400 feet, away from populated areas, and the pilot must always keep the device in sight. This typically means covering stories that take place on public land away from cities — often agricultural and environmental stories.
Scott Pham, content director for KBIA, the NPR member station in Columbia, Mo., is working with graduate students at the Missouri School of Journalism on stories that they believe will work best for drones. The best stories typically involve subjects that are difficult to gain a good perspective of from the ground, such as rivers and waterways. But he added that just because a subject is more conducive to drone journalism, students also need to find interesting stories so as not to just use the drones for the sake of using drones.
“We want students to cover real stories but have a real proof of concept,” Pham said. “And we want people to consume it as a news story, not as a drone proof of concept.”
Schroyer, who founded dronejournalism.org and the Professional Society of Drone Journalists, said FAA restrictions on how and where drones can be used could place unnecessary burdens on journalists who might see it as their obligation to cover a major news event.
“All laws are not ethical. There has to be some area for us to operate. At the same time I think people might find themselves in a moral quandary: something important is happening, and I can’t get it without using one of these (drones),” he said.
Poynter’s McBride said journalists will sometimes justify breaking the law in rare circumstance, but rather than argue that they’re exempt from the law, journalists should be prepared to face possible legal consequences.
PROTECTING PERSONAL PRIVACY
Generations of journalists have fought with privacy laws as new technologies have challenged the way we understand what it means to have a “reasonable expectation of privacy.” With each new technology, the law and social values have adapted, and Waite expects that to happen with the introduction of drones.
“What we need in this country are sensible rules and guidelines about what is a reasonable expectation of privacy. Our notions of privacy are changing all the time with technology,” Waite said. “We’ve seen this before: Technology is created, people freak out, the law gets squared out and we move on with life.”
Privacy laws differ from state to state, but the basic rule is that an individual cannot use technology to peer into a place where a person has a “reasonable expectation of privacy” — where that person should feel safe in letting their guard down and not expect to be recorded. The more private the location — like a person’s private home — the more reasonable it is for a person to feel secure in the location.
Waite said society often jumps at the chance to blame technology when people have their privacy invaded, but instead we should be concerned with the practices of a minority of people using technology to break the law or ethical codes.
“What are we worried about — that a drone was used to take (the pictures), or that the pictures were taken at all?” he said. “If you’re going around banning specific uses of technology, you are getting into an arms race with technology, and technology will always win.”
APPLYING JOURNALISM ETHICS
Exploring ways to apply existing ethics codes to new technologies can also raise interesting issues for journalists. Both Schroyer and Waite believe that existing ethics codes can apply to drones, since the principles behind journalism ethics codes are broad. In order to help professionalize the practice, Schroyer and the members of dronejournalism.org are working as a community to create a drone journalism code of ethics that goes above and beyond the ethics codes of SPJ or the Radio Television Digital News Association. Their code of ethics includes statements asking practitioners to use drones only when there is no other, safer method of getting the information they need, and that violating FAA regulations and local laws may be necessary in order to get access to critical information.
Some of the most difficult ethics questions relate to how drones might inflict emotional harm on a subject or how watching a person without their notice might raise privacy concerns. For instance, should a person in a public place be expected to know that a device could be recording them from 400 feet above, or should journalists take efforts to inform people they might be recorded?
Waite said he approaches the ethical questions by first checking to see whether the question is really a novel issue that hasn’t been dealt with before, since many of the same ethics questions can be applied to journalists using helicopters and telephoto lenses.
“We keep asking ourselves: Is this a new ethical problem, or an old ethical problem with new technology?” Waite said.
As a media ethicist, McBride has studied the introduction of new technologies to journalism. She said that even though circumstances are different with each emergent technology, the ethical questions stay the same.
“Technology never raises new questions; it always raises old questions in new frameworks,” she said.
THREATS OF NEW LEGISLATION
Before commercial drones even take to the air en masse, Congress is questioning the FAA over privacy protections in federal regulations. In response, the FAA developed a domestic drone test site program in February that will establish six test sites for the use of drones under an expanded privacy regulatory system. Those using drones within the test sites will have to develop a privacy policy on how they will collect and use information, and will agree to follow federal, state and local privacy laws or face additional penalties from the FAA.
Additionally, many states have joined the effort to regulate drones, attempting to ban certain users from the state’s airspace or to regulate the way police use drones to collect data on citizens. According to dronejournalism.org, 29 states have sought to regulate drones in their respective airspace. In Oregon, proposed legislation would make it a Class B misdemeanor to operate a drone without authorization from the federal government or the state of Oregon. The penalty would increase to a Class A misdemeanor if the operator obtains an image of a person while operating the drone. In Texas, legislators have proposed a bill making it a crime to capture images of someone’s property without their permission. The bill includes possible jail time for offenders who possess the images or attempt to distribute them.
The legality of the proposed laws will hinge on whether the FAA attempts to challenge the states’ attempts to usurp the federal agency’s authority to regulate the national airspace. In one case from 2002, the city of Huntington Beach, Calif., attempted to ban airplanes towing banners near the beach, but the city rescinded the ordinance after the FAA challenged it.
While the slow process of developing rules and regulations for domestic drone use may be frustrating, Waite sees that speed as a blessing in disguise for journalism.
“It’s rare that journalists get time to consider how to use a technology before it is thrust on them,” Waite said. “We have an opportunity to develop guidelines long before we’re actually doing it. I’m hoping that leads to better journalism.”
David Wolfgang is a doctoral student at the Missouri School of Journalism studying First Amendment issues, online privacy and anonymous speech. Reach him at jdwolfgang@mail.missouri.edu or on Twitter: @David_Wolfgang.
