PUBLISHED:November 25, 2019

Paper lays out best practices for scientists using drones for environmental research

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Nowlin, Roady join with Nicholas School collaborators to educate researchers on the privacy rights of those incidentally caught in a drone's lens

Professors Michelle Nowlin JD/MA ’92 and Stephen Roady ’76Professors Michelle Nowlin JD/MA ’92 and Stephen Roady ’76

A new article by four Duke University experts in law and environmental science offers a comprehensive examination of issues arising from the incidental capture of information by drones used in conservation research, including the property, privacy, and security rights of landowners and people engaged in outdoor sport.

In “Applying Unoccupied Aircraft Systems to Study Human Behavior in Marine Science and Conservation Programs,” published in Frontiers in Marine Science, co-authors Michelle Nowlin JD/MA '92, Stephen Roady '76, David Johnston, and Rett Newton also offer guidelines to help scientists stay within legal and ethical boundaries.

“The lens is wide,” said Nowlin, a clinical professor of law and co-director of the Environmental Law and Policy Clinic, who made these issues the focus of an advanced clinic course she taught in 2018 with Roady, a professor of the practice of law and marine science and conservation. “The question is, what are the implications of that incidental information?” In teaching their course, Nowlin and Roady partnered closely with Johnston, an associate professor of the practice of marine conservation and ecology and director of Duke’s Marine Robotics and Remote Sensing (MaRRS) Lab, where Newton, a PhD candidate at the Nicholas School of the Environment, is lab manager.

Drones — ever more affordable, efficient, and easy to operate — can autonomously view and continuously record large amounts of data over wide areas, and thus offer vast possibilities for researchers studying human interaction with the environment, such as marine areas, in order to inform policy on the stewardship of natural resources. But in their paper, the authors point out that Federal Aviation Administration regulations governing the use of drones do not address privacy rights, state laws designed to protect privacy interests implicated by drone use are still developing, and there is little case law governing the private, non-governmental use of drones.

While legal precedent has not yet caught up with drone technology, constitutional, statutory, and common law do provide some guidance for conservation researchers on how to avoid violating individual privacy interests, they write. The paper explores those laws, including the nuances that separate civil and criminal law; the distinction between state and private actors; the Fourth Amendment definition of “search;” and the tort definition of invasion of privacy and what constitutes a reasonable expectation of privacy. The paper then applies this research to two case studies, one involving recreational fishing in coastal waters and the second involving aerial surveys of a national park.

Finally, the authors offer a set of practical protective measures that researchers can take to avoid incurring legal liability related to the information gathered in drone-enabled studies. Those measures include limiting image collection by locking a camera’s face downward and filming beaches offshore and from a distance sufficient to avoid capturing human faces or other identifying characteristics.

In the 2018 class that gave rise to the new article, Nowlin and Roady led JD candidates, environmental management graduate students, and one undergraduate engineer with expertise in drone technology in an exploration of the legal, ethical, and policy implications raised by the technology’s use in studying humans’ interactions with marine and coastal systems through such activities as recreational fishing.

With a MaRRS Lab team presenting questions they had come upon in the course of their research, Nowlin, Roady and their students defined salient issues, researched legal and ethical considerations, and produced legal memoranda detailing the constitutional, statutory, and common laws implicated in each area of inquiry. At the end of the course, Duke Law and Nicholas School faculty collaborated on a paper to make the class’s findings useful to researchers beyond Duke University and, ultimately, to help inform responsible environmental management and resource-enforcement decisions by public lands officials.

“It was an exciting dynamic for all of us,” Nowlin said, noting that the faculty learned alongside the students. “We love these natural places and wildlife, but we don’t have to love them to death in the process of learning about them. This study gives researchers and resource managers assurance that, if they observe certain best practices, they can use drones to improve how we understand and protect public spaces and resources without violating privacy.”