In his final days as a United States senator, West Virginia Democrat Jay Rockefeller released a draft bill that would subject drone operators to unprecedented new privacy regulations.

Currently, commercial organizations cannot operate drones unless they get special approval from the Federal Aviation Administration. The FAA is preparing a proposal to allow the commercial use of drones. But it is generally understood that the FAA does not have the authority to regulate privacy issues. Media reports have stated that the White House will soon release an executive order that would direct the National Telecommunications and Information Administration to seek comment on drone-related privacy issues, but it is unclear whether that agency has any statutory authority to issue drone privacy regulations. Rockefeller’s bill would explicitly provide that authority to the Federal Trade Commission.

The bill is virtually certain not to pass, particularly because it has not yet been formally introduced in a committee, and its author is retiring next month. But because Rockefeller has been a leading privacy advocate in Congress, the bill provides a glimpse into how some legislators would like to address privacy concerns about this emerging technology.

The bill would require the FTC to adopt regulations that include the following provisions:

• Prohibiting the use of drones for surveillance of an individual without the individual’s prior express consent;

• Requiring drone operators to anonymize and aggregate information about individuals who have not provided prior express consent;

• Requiring operators of drones that are equipped with information collection or surveillance capabilities to adopt privacy policies that state, among other things:

  • the purpose for which information will be collected;

  • that the collection of any information will be “limited to the extent necessary for the specified purpose;”

  • how information collected from the drones will be used, disclosed, and retained;

  • a guarantee that the collection of information will be limited to the extent necessary for the specified purpose;

  • if the information contains identifiable images obtained by consent, the information will not be used in a manner inconsistent with the specified purpose except with the prior express consent of each individual or as provided by law;

  • how an individual who provided consent for his or her information to be collected by drone could obtain the information and revoke consent;

  • a statement that a drone operator must comply with all applicable state and local privacy laws;

• Requiring that operators of drones that are equipped with information collection or surveillance capabilities “take reasonable actions” to adopt information security and retention policies to ensure that they comply with their privacy policies;

• Allowing the FTC to review drone operators’ privacy policies for compliance with this law;

• Requiring the FTC to establish a website with drone operators’ privacy policies;

• Allowing enforcement of the FTC’s regulations by the FTC, states, and private parties. The private right of action would allow a person who suffers physical harm or an invasion of privacy to recover actual damages of $1,000 or greater.

Such a bill is likely to raise serious concerns under the First Amendment. For instance, newsgathering organizations have long been interested in using drones to cover breaking news and other stories. (The University of Nebraska-Lincoln’s Drone Journalism Lab provides a number of examples here.) The Rockefeller bill would subject journalists to unprecedented regulation, limiting their use of a newsgathering tool and allowing FTC oversight of their reporting practices. Rockefeller’s bill seems to acknowledge these concerns, and states that in promulgating its regulations, “the Commission shall consider the protections afforded by the First Amendment to the Constitution of the United States.” But it is unclear how the Commission could comply with the basic requirements of the law without encountering serious First Amendment problems.