Introduction NEVADA UAS TEST SITE PRIVACY POLICY As required by the Other Transaction Agreement (OTA) between the Federal Aviation Administration (FAA) and the State of Nevada, DTFACT-14-A-00003, Modification 0001, May 19, 2014, the Nevada Institute for Autonomous Systems (NIAS) Unmanned Aircraft Systems (UAS) Program Management Office (PMO) hereby establishes the following policies and procedures to ensure the protection of privacy and the public s trust during operations of the Nevada UAS Test Site. FAA OTA Guidance Under Article 3 Privacy, of the OTA, appended in its entirety below, the State of Nevada, NIAS and NIAS UAS PMO as the Test Site operator must: (i) Have privacy policies governing all activities conducted under the Agreement, including the operation and relevant activities of the UAS authorized by the Test Site Operator. (ii) Make its privacy policies publicly available (iii) Have a mechanism to receive and consider comments from the public on its privacy policies (iv) Conduct an annual review of test site operations to verify compliance with stated privacy policy and practices and share those outcomes annually in a public forum with an opportunity for public feedback (v) Update its privacy policies as necessary to remain operationally current and effective (vi) Ensure the requirements of its privacy policies are applied to all operations conducted under this Agreement. The Test Site Operator s privacy policies should be informed by Fair Information Practice Principles. a. Compliance with Applicable Privacy Laws For purposes of this Agreement, the term Applicable Law shall mean (i) a law, order, regulation, or rule of an administrative or legislative government body with jurisdiction over the matter in question, or (ii) a ruling, order, decision or judgment of a court with jurisdiction over the matter in question. 1 The NIAS PMO is Managed and Operated by Bowhead, a wholly owned subsidiary of the Ukpeagvik Inupiat Corporation,
The Test Site Operator and its team members must operate in accordance with all Applicable Law regarding the protection of an individual s right to privacy (hereinafter referred to as Privacy Laws ). If the U.S. Department of Justice or a state s law enforcement authority files criminal or civil charges over a potential violation of a Privacy Law, the FAA may take appropriate action including suspending or modifying the relevant operational authority (e.g., Certificate of Operation, or Agreement) until the proceedings are completed. If the proceedings demonstrate the operation was in violation of the Privacy Law, the FAA may terminate the relevant operational authority. b. Change in Law If during the term of this Agreement an Applicable Law comes into effect that may have an impact on UAS, including impacts on the privacy interests of individuals or entities affected by any operation of any UAS operating at the Test Site, such Applicable Law is applicable to the Agreement and the FAA may update or amend the Agreement to reflect these changes. c. Transmission of Data to the FAA The Test Site Operator should not provide or transmit to the FAA or its designees any data other than the data requested by the FAA pursuant to Article 5 of this Agreement. d. Other Requirements The Test Site Operator must: (i) Maintain a record of all UAS operated at the test sites (ii) Require each Test Site Operator in the Test Site to have a written plan for the operator s use and retention of data collected by the UAS and how it will comply with NIAS UAS PMO policies. Nevada UAS Test Site Policy Privacy policies and procedures for the Nevada UAS Test Site are the result of consideration of Federal, State, and local legislation and policies. During the planning phase for potential operations at the Nevada UAS Test Site, the NIAS UAS PMO will analyze proposed test plans to ensure they meet applicable Federal and State privacy regulations, statutes, and guidance for sensor requirements, data collection plans, and data retention plans. The NIAS UAS PMO s objective is to prevent inappropriate surveillance and collection of data which invades an individual s privacy. The NIAS UAS PMO s policies are informed by numerous sources such as: Association for Unmanned Vehicle Systems International UAS Operations Industry Code of Conduct 2 The NIAS PMO is Managed and Operated by Bowhead, a wholly owned subsidiary of the Ukpeagvik Inupiat Corporation,
Department of Justice/National Institute for Justice research and development and policy recommendations International Association of Chiefs of Police Aviation Committee s Recommended Guidelines for the Use of Unmanned Aircraft Airborne Law Enforcement Association policies and procedures (manned and unmanned) Department of Defense (DoD), US Air Force policies, procedures and operations instructions (OI) Department of Energy (DOE) policies and standard operating procedures Operations Planning The NIAS UAS PMO s Flight Planning Guides and additional information collected from prospective customers will help to ensure that UAS operations within the Nevada UAS Test Site meet the currently established privacy laws and policies within the United States and the State of Nevada. Examples of the information that the NIAS UAS PMO will request from potential customers which will be used to evaluate privacy issues include: Airspace requirements UAS operating requirements (altitudes, profiles, spectrum, data handling) Sensor specifications and operations requirements Data collection requirements Data retention requirements (what and for how long) This information will be used by the NIAS UAS PMO planning staff to select appropriate locations for the flight operations to provide for the greatest privacy protection. The PMO will create a detailed test plan with realistic limitations on sensor operations and collection activity of surveillance data during the missions. Empirical test data such as radar track information or Automatic Dependent Surveillance - Broadcast (ADS-B) data should not be subject to these limitations, but the PMO will determine the types of sensor data that will be subject to limitation in concert with range authorities and NIAS legal counsel. The PMO will also use this data to coordinate with range vendors such as airport authorities, DOE, DoD, land owners, and the general public on the nature of the operations and sensor activities expected during the flights. The NIAS UAS PMO will coordinate with the customer/operator and will limit or prohibit sensor operations not specifically required or which have a real expectation of violating privacy during the flights: This will not preclude operational testing of the functionality of the sensor while airborne if required, but will look to minimize unnecessary use throughout the mission. If the operation is conducted in a sensitive area, steps will be taken to ensure sensors are not operated during that time while over such area, including removing power from 3 The NIAS PMO is Managed and Operated by Bowhead, a wholly owned subsidiary of the Ukpeagvik Inupiat Corporation,
the sensor or confirming that the sensor is gimbaled in such a manner that data is not collected. Regardless of how data is collected (at the GCS, recorded on-board, transmitted to an operations center, etc.), the data will be reviewed by the NIAS UAS PMO staff (Range Coordinator or Privacy Representative as a minimum) or appropriate range authority (Nellis Test and Training Range or DOE staff if appropriate). The NIAS UAS PMO will only keep collected data for a specific period of time. Normal retention periods will not exceed 90 days unless a waiver is requested. Requests for this waiver shall be addressed to the PMO Flight Operations Manager. Such request may be completed via e-mail with detail on the specific data type, affected dates, and reason for the waiver request. The NIAS UAS PMO Privacy Representative and NIAS legal counsel if required will review the request and relay a written decision on the waiver, normally via e-mail reply. Operations Execution Specific sensor limitations, data collection limitations and retention agreements will be reviewed throughout the planning stages and again at Flight Readiness Review. Daily operations flight briefings will re-emphasize these limits to ensure that the privacy policies are being adhered to during flight operations. The on-site NIAS UAS PMO lead for Flight Operations (Range Coordinator or Flight Operations Manager) will be responsible for ensuring compliance with these limitations, including designation of personnel to monitor sensor operations and data collected. Post-flight Procedures Following flight operations, the NIAS UAS PMO staff will provide a written report of the flight activities and will include a summary of sensor operations and the collection of data, if applicable. When required, sensor data will be reviewed by the NIAS UAS PMO staff or designated range vendor authority (DOE/NTTR representatives). It shall be the policy of the PMO that if any privacy issues or concerns arise during the course of a flight operation, they will be documented and corrective action shall be documented by the reviewing authority with feedback to the Flight Operations Manager. Nevada Privacy Laws Neither the State of Nevada Constitution nor the State of Nevada s revised statutes have specific sections dealing with privacy that could be directly applied to UAS activity within the state. Therefore, the privacy protections of the United States guaranteed under the U.S. Constitution and associated Federal regulations and case law apply in Nevada. Supreme Court privacy jurisprudence suggests that the Constitution will provide a much stronger measure of protection against government UAS privacy abuses than is widely appreciated. The Fourth Amendment has served us well since its ratification in 1791, and there is no reason to suspect it 4 The NIAS PMO is Managed and Operated by Bowhead, a wholly owned subsidiary of the Ukpeagvik Inupiat Corporation,
will be unable to do so in a world where unmanned aircraft are widely used. In addition, there are substantial statutory and common law protections that will limit the ability of non government entities to violate privacy using unmanned aircraft. 1 Lacking definitive guidance by State of Nevada statutes, the Nevada Test Site will comply with a U.S. Federal laws and generally accepted privacy policy which prohibits using a UAS for surveillance to capture imagery of individuals or privately owned real property to possess, disclose, display or distribute for the purpose of legal action without a proper warrant. If operations at the Nevada UAS Test Site result in the unintentional capture of such imagery without proper warrant, the images will be destroyed. It is important to note, that Fourth Amendment protections apply only to public aircraft operations. Invasion of privacy is a commonly used cause of action in legal pleadings. Modern tort law includes four categories of invasion of privacy: 1. Intrusion of solitude: physical or electronic intrusion into one's private quarters 2. Public disclosure of private facts: the dissemination of truthful private information which a reasonable person would find objectionable 3. False light: the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory 4. Appropriation: the unauthorized use of a person's name or likeness to obtain some benefits 2 Change in Law The NIAS will review this privacy policy annually in reference to changes in both Federal and State of Nevada privacy laws, as well as, any newly established UAS regulation and policies. Recommendations for amendment or replacement of any portions of this policy will be brought to the attention of the Executive Director of the Board of Directors of the Nevada Institute for Autonomous Systems and the Program Management Office. Transmission of Data to the FAA The Nevada UAS Test Site will not provide or transmit to the FAA or its designees any data other than the data specifically requested by the FAA pursuant to Article 5 of the OTA. 1 Observations From Above: Unmanned Aircraft Systems and Privacy, John Villasenor, Harvard Journal of Law & Public Policy, Volume 36 2 William Prosser (1960), "Privacy", California Law Review (Vol 48, No. 3, pages 383-423). 5 The NIAS PMO is Managed and Operated by Bowhead, a wholly owned subsidiary of the Ukpeagvik Inupiat Corporation,
Other Requirements The Nevada UAS Test Site will: (i) Maintain records of all UAS operating at the test sites; and (ii) Require each Test Site Operator in the Test Site to have a written plan for the operator s use and retention of data collected by the UAS. Records of UAS flights at the Nevada UAS Test Site will include operational summaries of sensor usage, data collection and data retention as previously noted in the operational policy above. These records will be maintained for the duration of the OTA. The NIAS UAS PMO will assist Test Site customers/operators in producing a written plan for use and retention of data collected by the UAS. The PMO will provide a template to potential customers during the planning/qualification phase of an opportunity to assist the development of this plan. Public Review and Comment The Nevada UAS Test Site will be presented for review and approval of the NIAS Board of Directors and will be available to the public at that meeting. Additionally, upon approval by the Board, the policy will be posted on the nias-uas.com web site with an e- mail form to solicit public comments. That e-mail will be privacy@nias-uas.com and will be delivered to the PMO Privacy Representative and General Manager to ensure coverage on responses to comments. Annual Review and Revision The Nevada UAS Test Site will be reviewed annually to consolidate revisions caused by changes in the FAA OTA requirements or policies and Federal, State or local law. Immediate requirements for revisions may be ordered by the NIAS Board of Directors at any time. Revisions will be controlled by the NIAS UAS PMO document control and revision processes. Office of Primary Responsibility The Nevada UAS Test Site s privacy policies will be informed by Fair Information Practice Principles, and the NIAS UAS PMO will be primarily responsible for ensuring that the requirements of the privacy policies are applied to all operations conducted at the Nevada UAS Test Site under the OTA. 6 The NIAS PMO is Managed and Operated by Bowhead, a wholly owned subsidiary of the Ukpeagvik Inupiat Corporation,