May 22, 2014 Leave a comment
On March 18th, the Columbia Journalism School hosted a group of academics, lawyers, journalists and makers who gathered for a workshop on the legal and ethical issues associated with sensor journalism. The event was organized by Fergus Pitt, a Fellow at the Tow Center for Digital Journalism working on the Sensor Newsroom Project funded by the Tow Foundation and the Knight Foundation.
Workshop participants covered a wide range of topics including privacy, data accuracy and intellectual property. I participated in two panels: the first featured a discussion on regulatory and intellectual property issues with Mike Hord, Electrical Engineer at SparkFun Electronics and Matthew Schroyer, Founder and President of the Professional Society of Drone Journalists; and the second featured a discussion with Deirdre Sullivan, Senior Counsel at the New York Times on risks and liabilities associated with drones.
Mike Hord led an interesting discussion on the Federal Communications Commission (FCC) rules governing the electromagnetic spectrum. While commercial entities face stringent testing requirements for electronic devices, the good news for hobbyists is that the rules permit individuals to use a single design to build up to five electronic devices without having to complete any testing. However, even though testing may not be required in these cases, individuals must comply with all applicable rules. For instance, if a device causes unacceptable interference, the user may still face legal penalties.
Matthew Schroyer explored closed and open source models in the context of sensor journalism. Media companies that develop closed technologies can benefit from clear revenue streams from licensing activities. Although newsroom technologies remain predominantly closed, journalists are increasingly adopting open source tools. The open source model presents many advantages to journalists, for instance it promotes transparency and accountability, which are particularly important in the context of sensor journalism investigations in which accuracy and precision are critical.
Deirdre Sullivan and I explored the risks and liabilities that media companies and journalists face when developing and operating drones, an obvious concern being the risk of physical injury or substantial property damage.
Deirdre approached these concerns from a negligence perspective. Tort liability for negligence can be applied where an individual has a duty, the duty is breached and injury results. A journalist operating a drone has a duty to not place others in foreseeable risks. If the journalist breaches this duty – for example, by flying dangerously close to a crowd at an outdoor concert – and someone is injured, then it is likely that a negligence claim would succeed. Deirdre also explored the potential application of negligence per se in the context of commercial use of drones. Generally, when an action violates a statute (i.e. speeding), such action conclusively establishes negligence, hence the term negligence per se. Since commercial drone operations currently fall in a legal grey area, Deirdre suggests that it is unclear whether negligence would be presumed in personal injury claims arising in the context of commercial drone operations.
I explored the application of product liability concepts to open and closed drones, and suggested that liability is more straightforward in the context of closed drones. For example, a closed drone may be built with safety features such as ‘sense and avoid’ technology to reduce the risk of collision. If these features do not function, then the developer may be held liable for personal injury or property damage. However, if a journalist operator modifies a drone in violation of the end-user license, then the developer could avoid liability by claiming alteration as a defense, and the operator is likely to be on the hook for personal injury or property damage that occurs.
In the case of open drones, liability is more problematic. Assume a journalist operator modifies a ‘sense and avoid’ radar and adds communication and weather modes. If the revamped drone crashed into a person, causing bodily injury, who would be liable? A court would have to engage in a complicated analysis to determine whether the underlying technology or the modified upgrade is to blame. And, the initial developer of the open ‘sense and avoid’ radar would not be able to avoid liability by simply claiming alteration as a defense.
Although open technologies may be more problematic than closed designs from a liability perspective, industry measures may be adopted to mitigate liability risks. Developers of open technologies can look to licensing as a mechanism to allocate liability and promote non-harmful and ethical use of their technologies. For example, a sufficiently and selectively open license may be used to prohibit end-users from removing safety or privacy features incorporated by upstream developers.
For those interested in further reading, the workshop papers will be published in June by Columbia University.