The Eye in the Sky Delivers (and Influences) What You Buy

Abstract

Imagine that you are at home, when suddenly a drone peers into your window, takes a picture of your wardrobe, familiarizes itself with your fashion preferences, or takes a picture of your kitchen table during dinner. The drone immediately transfers the picture to the commercial platform that operates it, such as Amazon or Uber. The platform in turn targets you with personalized advertisements for merchandise or food, in real time, customized to your lifestyle, at the time when you are most susceptible, manipulating you to make a purchase. How should the law react to this? And what if a drone were to collect information on private individuals in public using sophisticated cameras, sensors and facial recognition software? What if the platform that operates drones were to collect and use information on consumers and third parties? Should the law limit such invasions of privacy? The use of drones is growing rapidly and their technological capabilities are growing exponentially. Drones differ from existing surveillance technology. Their low cost and their ability to fly, equipped with high-resolution cameras, recording systems and sensors, enable them to take in information over longer periods of time and much more effectively than the human eye or ear. Such capabilities are liable to give rise to pervasive surveillance of a kind never known before. Making matters worse, invasion of privacy has serious consequences. By using a network of drone fleets at the service of a single commercial platform, such surveillance could allow the platform to effectively aggregate and analyze tremendous amounts of high-quality information on the parties under surveillance, gain valuable insight on consumers and influence their decisions to order merchandise or food. While much of the scholarship on drone surveillance and invasion of privacy focuses on governmental use and the Fourth Amendment, this Article focuses on the use of drones by private entities engaged in commercial deliveries. Drone deliveries are relatively new; only a few companies have recently overcome the regulatory obstacles to receive Federal Aviation Administration approval for U.S. deliveries. COVID-19 has pushed companies to utilize drones for deliveries and has increased demand for it. Since drones are unmanned, they can deliver food and other products without close contact with the recipient. Such delivery can be safer, faster, cheaper and more efficient than traditional emissaries; yet alongside the benefits, the use of delivery drones can lead to invasion of privacy and can result in abuse of personal data for manipulation, raising significant challenges.This Article addresses the challenges drones pose to privacy and proposes solutions. It aims to contribute to the literature in several ways. First, it outlines a roadmap of the different types of invasion of privacy and harm that can be caused by drones. It demonstrates that the physical boundaries of invasion no longer matter in light of advanced technology. In identifying types of invasion and harm, this Article takes the first step towards creating a legal policy for delivery drones. Second, this Article addresses existing law, arguing that currently there is a gap between the capacity of drones to observe and aggregate personal information and privacy protections under U.S. law. Third, it proposes solutions under privacy law, and even a duty of loyalty for platforms that operate drones. Finally, this Article accounts for possible First Amendment objections to the proposed solutions.