Mark McKinnon is a Partner at Fox Rothschild LLP, a national law firm representing aviation entities in international transactions and business dealings. He has over 30 years of experience in all areas of aviation and transportation law including litigation, appellate, regulatory, and other administrative matters. Mark has written and spoken extensively on unmanned aircraft systems (UAS) and other aviation subjects. Additionally, he is the co-editor of the Plane-ly Spoken Blog, a publication dedicated to providing up-to-date news, analysis, and opinions on issues affecting the aviation industry.
Here’s a glimpse of what you’ll learn:
- Mark McKinnon details his career progression in aviation law
- How the Supreme Court dictates aviation privacy regulations
- Mark explains the implications of commercial drone usage
- How do privacy laws regulate the drone industry?
- Why the Federal Aviation Administration does not control drone privacy
- Common mistakes companies make when utilizing drones
- Mark’s top privacy and security tip for small businesses
In this episode…
Drone regulations in the aviation industry are ambiguous and vague, leading many companies to neglect privacy and security considerations. So, how can you prioritize these concerns to avoid potential lawsuits from clients?
According to Mark McKinnon, the Supreme Court has ruled that drones can operate at an altitude of only 200 feet without violating individuals’ reasonable expectations of privacy. But this ruling has been frequently disputed, which is why it’s critical to evaluate the regulations of the region you plan to operate from. Once you’ve established this, determine the purpose for the data you’ve collected and ensure you’re not releasing it to the public without your clients’ permission. By maintaining transparency with clients regarding their data usage, you can protect their privacy.
In today’s episode of She Said Privacy/He Said Security, Jodi and Justin Daniels talk with Mark McKinnon, a partner at Fox Rothschild LLP, about how drone companies can ensure individual privacy and security. He discusses how the Supreme Court dictates aviation privacy regulations, the implications of commercial drone usage, and common privacy and security mistakes companies make when utilizing drones.
Resources Mentioned in this episode
- Jodi Daniels on LinkedIn
- Justin Daniels on LinkedIn
- Red Clover Advisors’ website
- Red Clover Advisors on LinkedIn
- Red Clover Advisors on Facebook
- Red Clover Advisors’ email: email@example.com
- Mark McKinnon on LinkedIn
- Plane-ly Spoken on Fox Rothschild
Sponsor for this episode…
This episode is brought to you by Red Clover Advisors.
Red Clover Advisors uses data privacy to transform the way that companies do business together and create a future where there is greater trust between companies and consumers.
Founded by Jodi Daniels, Red Clover Advisors helps their clients comply with data privacy laws and establish customer trust so that they can grow and nurture integrity. They work with companies in a variety of fields, including technology, SaaS, ecommerce, media agencies, professional services, and financial services.
You can get a copy of their free guide, “Privacy Resource Pack,” through this link.
Jodi Daniels 0:02
Hi, Jodi Daniels here. I’m the founder and CEO of Red Clover Advisors, a certified women’s privacy consultancy. I’m a privacy consultant and certified informational privacy professional, providing practical privacy advice to overwhelmed companies.
Justin Daniels 0:18
Hi, Justin Daniels here I am passionate about helping companies solve complex cyber and privacy challenges during the lifecycle of their business. I am the cyber quarterback helping clients design and implement cyber plans as well as help them manage and recover from data breaches.
Jodi Daniels 0:34
And this episode is brought to you by Oh, look at me, I’m a symbol now. Red Clover Advisors, we help companies to comply with data privacy laws and establish customer trust so that they can grow and nurture integrity. We work with companies in a variety of fields, including technology, ecommerce, media, and professional services. In short, we use data privacy to transform the way companies do business. Together, we’re creating a future where there’s greater trust between companies and consumers. To learn more, visit redcloveradvisors.com and today we’re going to talk about a really fun topic,
Justin Daniels 1:13
how you’re going to transform your office with a new picture that was not
Jodi Daniels 1:17
the plans topic. The maybe the next time that we have one of these will probably not the next time but in the future one of these on YouTube you’ll be able to see hopefully a beautiful new picture posted the boring blue wall.
Justin Daniels 1:34
Alrighty then. Okay, so today we are going to take off and talk about privacy and drones look it up no cutesy clever, have my moments as few as they may be. So we have with us today, Mark McKinnon partner at Fox Rothschild, and he has nearly three decades of experience in Aviation and Transportation law including litigation, appellate regulatory and administrative matters. He is particularly well versed in unmanned aircraft systems law assisting clients in their efforts to obtain approval for complex commercial UAS operations, including beyond visual line of sight and autonomous flight. Mark. Welcome to the podcast.
Mark McKinnon 2:18
All right. It’s great to be here.
Jodi Daniels 2:21
Justin, so excited, because we’re talking about one of his favorite topics, drones. But before we do that, Mark, we always like to understand how people’s career evolves. So the drones that we have flying today, as basil, the dog would like to agree, we didn’t really have those quite the way we do now, when you started your career. So help us understand a little bit of your career progression.
Mark McKinnon 2:46
So I actually started my karate clerked for a judge in the Sixth Circuit. And then after that, I decided I would move to Washington, DC and go into private practice. And it just so happened that there was a noted lawyer who was the head of the Civil Division, in particular, the Aviation Division, who just left the Justice Department, and it started an aviation practice. And he was looking for lawyers. And I had no aviation background at all. And I sent him my resume. And, and he hired me. And I thought, well, I’ll do this for a while. And then you know, I’ll see what comes up in a couple of years and 32 years later, I’m still working with the same same team of people, we’re doing the same types of aviation law, you know, it’s just one of those things, you just kind of stumble into it, and then you keep doing it. But you’re right, when we started, the practice was almost completely focused on mass aviation disasters. So you know, we worked on all the big, you know, airplane crashes in the 90s, in the 2000s, you know, the TWA 800, US Air Force, 27, US Air 1016, Alaska, 261, you know, the 911, litigation, all that stuff. And over the decades, fortunately, you know, the increase in things like SMS and other types of safety protocols have caused aviation to be just amazingly safe. I mean, people forget in the 90s, you would have one or two major US air crashes every year. And, you know, and I think today, you know, if a major airliner were to crash, there hasn’t been a major one in a long time. You know, it would it would be shocking to people because that’s how safe aviation is. But as a result of that, then, you know, the practice, which was always an aviation industry practice kind of change. And, you know, we got into more regulatory enforcement, compliance issues, air carrier regulation, that kind of stuff. And then once drones really started to take off in around 2012, when we started get some of the legal framework that allowed drones to fly. You know, I started getting into that and that just kind of developed into a specialty, you know, that I do now. So it’s just an offshoot of the fact that we have a broad aviation practice.
Jodi Daniels 4:52
Well, Justin, I were knocking on Wade because as you were talking, I was thinking about you know, you’re right. i We have been for Fortunate to realize how safe aviation is right now. And that is a good thing. So we’re we’re continuing to knock on our wind for all planes flying everywhere.
Justin Daniels 5:10
Because remember, Mark, just as initial question, the FAA they regulate privacy and security, right?
Mark McKinnon 5:17
Yeah. Well, like deeply Yes. It’s funny because I don’t know if you’re following it the when the small UAS, the small drone rule was coming out, there was a group called Epic, which actually asked the FAA to do a rulemaking specifically about drones and privacy. And they came back and said, under no circumstances, what we do that their position was while we regulate aviation, it is purely aviation safety, we, we have no interest in anything that’s non safety related. And that while there’s broad federal preemption states are not allowed to regulate almost anything having to do with drones airspace, where they can fly the requirements for pilots, the FAA said, you know, the states can knock themselves out when it comes to privacy issues, just so long as they don’t use it as like a stealth way of getting into, you know, to control the airspace. So So for example, like, you know, the FAA said, that a state can pass limits on on, you know, how video shot from a drone is you, you know, whether it’s if you shoot somebody in their backyard, and the state has a law that says you can’t do it, that’s fine. But what the state can’t do is turn around and say, Okay, well, now, no drones can fly in our state below 300 feet, because that’s actually an aerospace regulation and not a privacy regulation. So there’s kind of a kind of a split there.
Justin Daniels 6:38
So Mark, you’ve just teed us up for the first thing we wanted to talk about, and that is the recent Michigan drone case. And I would love for you to give our audience a little bit of the background and why that is an interesting case when it comes to rights and privacy and drones and law enforcement.
Mark McKinnon 6:57
Yeah, it’s barely been been percolating through the system for one of the original decision came out from the Court of Appeals last year, and then the Supreme Court of Michigan decided to take it up. And then recently, they’ve actually sent it back to the Court of Appeals for them to look at an issue not related to the privacy part of it, but over an issue about whether or not because the case involves one like Township and their use of an administrative warrant to try and photograph someone’s property, or to do a web browser. But they should have had an administrative warrant and they didn’t have when the question was, you know, was that a warrantless search proper or not? So they sent it back to look at that question about whether any non criminal context, you know, there is a, you know, the Fourth Amendment protects against that. But the court ruling about privacy actually really is undisturbed. I think, you know, it highlights something that’s really been percolating when we’re talking about drones and privacy. So if a case involved, one lake township was involved with a dispute over a guy and a, he had a big property in the, in the township, and he had a junkyard there, basically, it was own private junkyard, and the kind of the township declared it a nuisance, and they it was a lot of litigating back and forth, and they entered into a consent decree, but it’s okay when you don’t have to take everything off your property. But you can’t keep adding to it. And he agreed to that. And after a couple of years, the township was like, we think, you know, this guy is violating the rule. We think he’s bringing stuff in there, and it’s growing, but it’s in a place where we can’t see it, because it’s a large property. So they hired a drunk company to, over a period of several months, surveil this guy’s property, and then like, you know, do some photo analysis to determine like, is this pile of junk growing? Or is it shrinking? Or is it the same? And they basically found that no, it was definitely growing, the guy was adding stuff. They went and started in action, because he was violating the consent decree. And the guy came into court and said, Well, wait a minute, the only evidence you’ve got is this aerial surveillance video. And it’s an illegal search and seizure, and it has to be excluded. And then without that, you have no evidence. And the district court went did that and said, Well, now, because and this is the thing that if we’re talking about aviation, the Supreme Court when they have looked at questions about your reasonable expectation of privacy from people flying airplanes, and photographing your property, has basically drawn the lines of if the flight is legal, then you don’t have a reasonable expectation of privacy and the fact that the airplane is flying over your property, and recording it, because you’re kind of the kind of in that in that mode, where you have a trail of the trespass. And if it’s something that’s viewable on your property, from a place where a person has a legal right to see then you don’t have a reasonable expectation of privacy in this kind of way the courts have been looking at went to the Court of Appeals, and the Court of Appeals completely disregarded all of this existing case. Law. And it was kind of interesting the way they did it, because so going back 1986, the Supreme Court that was looking at these first cases were was, they’re using airplanes for drug enforcement, particularly in places like California and Arizona, and they’re flying over these big properties looking for marijuana that’s grown illegally. And 86, the Supreme Court said, if an airplane fixed wing airplane is flying at 1000 feet, and they’re photographing your property, and they’re there specifically to photograph your property, you don’t have a reasonable expectation of privacy. And that comes in. And then three years later, the Supreme Court had a case where involving a helicopter and a helicopter was flying at 400 feet. Well, there’s you know, their airspace rules are different. fixed wing aircraft generally has to stay at 1000 feet or higher. Helicopters can fly at lower altitudes under certain circumstances. The helicopter was Nicole where it was they said, you don’t have a reasonable expectation of privacy, the evidence comes in. So in this case, drones are different because when the FAA passed part 107 regulations which govern how you fly your drones, they carved out a part of the airspace which manned aircraft normally cannot use. And so drawl drawers have to fly in this airspace, and it’s between the ground and 400 feet. So for drones, the navigable airspace is actually you know, this entire airspace, which fixed wing aircraft don’t normally operate it. And the Court of Appeals looked at these issues and said, Well, you know, we recognize that if we’re going to strictly follow what the Supreme Court said, you know, this would be legal because a drone flying a 200 Feet has every right to be there. And it’s really no different. It’s, you know, it’s smaller, maybe the camera isn’t quite as good, maybe it’s better. But that’s, you know, that’s, you know, that would normally be legal. And when they were looking at it, they they kind of looked at this whole issue of how technology changes and people’s expectations of privacy shouldn’t necessarily change as the technology improves. The only thing that is that is this is a kind of a it’s a quote, that low altitude unmanned specifically targeted drone surveillance of a private individuals private property is qualitatively different from the kinds of human operated aircraft overflights that the Supreme Court permits. And so as a result, it’s a drone. Sir, surveillance of this nature intrudes into a person’s reasonable expectations of privacy. And they talked about the fact that drones because they’re smaller, they’re stealthier, if a helicopter is 200 feet over your house, you know, it’s there, the drums 200 feet over your house, maybe you don’t really know it’s there. So and you said that all of those things combined means that we’re there, we’re going to abandon that approach about what you have is a reasonable expectation of privacy when you’re dealing with aerial photography. And I think interesting part about that isn’t, you know, the Court recognized that they were they were kind of on a slippery slope. And and because, you know, they in the past, the way the FAA has looked at it, because you have this altitude test, if the flight is legal, it’s legal, and you can surveil? If we’re going to say that, at some point, you have a right of privacy, over some altitude of your property, where where do we draw that line? Where’s the altitude going to be drawn to court appeals said, Well, we’re not going to do that, because that would be arbitrary and futile. And so they just said that, you know, they would kind of leave it as almost as kind of loosey goosey standard where it’s like, it’s, we don’t we don’t know at what point it’s gonna cross the threshold. But you know, it’s what is it that that statement, the Supreme Court Justice, about, about pornography, I can’t define pornography, but I know it when I see it? Well, that’s the kind of the same thing. It’s like, you know, I can’t define when your privacy is violated, but we’ll know it when we see it. And so as a result, for drunk companies, it really puts them if this is going to be the standard, where to determine where you have a reasonable expectation of privacy, for purposes of this, because we’re talking about reasonable expectation of privacy. It’s not just well, this is a warrant case and a search case, the same principles are involved in common law suits for invasion of privacy, do you have a reasonable expectation of privacy if somebody’s flying a drone over your house and photographing your backyard or photographing your property or photographing you back there. And so you know, if this is going to be the way that the courts are going to look at it, it really causes a headache, trying to come up with a policy and a DNA management solution and permissions. And, you know, it’s just as I think it’s really interesting, there’s the first case of its type, which is really kind of looked at Aviation aero photography differently.
Justin Daniels 14:26
So, Mark, I want to ask you a follow up question. So so you’re probably aware of the flights that flytrex Does what they’re doing with wing with Walgreens down in Fort Worth, Texas. So what are the implications with a decision like this if you want to have last mile delivery and they want to fly over your house, my house to get to somebody’s landing pad for their prescription? And if those cameras are on they could be looking into my backyard and your backyard? So seems to me that would be a really interesting question that has to be solved when you look at personal pride. See versus this entire commercial industry around drone delivery that’s sprouting up pretty quick.
Mark McKinnon 15:05
Right. And that’s the thing, I think a lot of people were looking at this, you know, over the past years as of what are we have a right if our cameras are filming, and we have a right to fly over this route, that we have a right then to have this data and to collect it into management manage it as part of our business. And I think what this show is, is, you can’t necessarily treat that data as just open availability, public domain data, that you have to kind of treat it, like you want other people’s information and make sure that you’re not, you know, you’re not disseminating it, that you’re not publicizing it, or public, you know, making making it available to the public. And maybe again, if if you are doing a, you’re doing a drone flight video, you know, you’ve got to be careful about what what’s in the lower left hand corner of your video showing your delivery, you know, when you’re advertising it, because you may catch something in your video that somebody had a reasonable expectation of privacy in, and now they’re embarrassed. And so I think I think that’s the primary implication is, you know, you have to treat this type of data now. You know, it’s something that you can’t just throw around and make available to people.
Jodi Daniels 16:19
So you to kind of joked that the FAA does not cover privacy. Who is managing privacy? What if we think about the different laws that are out there? Now, we could talk about the current California law, the four plus California’s upgrade that are coming next year, maybe even the the new federal privacy law? Why have any of those privacy laws? How do they intersect with drugs?
Mark McKinnon 16:47
Well, because of the way the FAA, you know, has has taken, the person they’ve taken with it, that is a problem, particularly if you’re a nationwide you’re trying to develop a nationwide network is, you know, you’re caught up in the patchwork just like everybody else of state regulations. And, you know, you get all these issues, then about, you know, where privacy laws are going to govern? Is it the place where I filmed? Is it the place where the flight wise, it’s the place where I’m storing my data? Is it the place where, you know, my company is headquartered, the choice of law questions, you know, then proliferate. And, you know, trying to square that circle of, you’re coming up with a comprehensive privacy regime that’s going to protect you on a nationwide basis becomes really, really difficult. And, you know, I think, you know, it’s, it’s one of those things at the federal level, you know, they there’s the what was it? The I forget whose it is, is it they have that they was back maybe four or five years ago was the federal best practices, I forget which, which group promulgated was it it was oh, IRA, or one of the other groups. But anyway, so you know, that, apart from just like trying to pick up at the federal level, you know, what the federal Best Practices definitions are, you’re pretty much stuck at the state level, when you’re trying to figure out how to manage your data.
Jodi Daniels 18:07
So I’m just curious if we have in some of these laws, consideration, that video could be sensitive data. And if drones collect video data, and if sensitive data in some of those needs to be opt in consent to be able to use that, and I have a drone flying over a bunch of properties who didn’t get consent to do that, it feels like you’d have a major conflict of two different laws. And even, you know, federal agencies intersecting they’re, well, I guess, not intersecting really well. In other words, how do those things align, where I have, this movement of video data is being considered sensitive, and I might need to have opt in consent, but I have a drone flying over, that says I can have any airspace from the ground up to 400 feet without consent.
Mark McKinnon 19:01
Right. And I think a lot of it then depends on, you know, how the drone is using the video data, because I mean, generally, you know, apart from, you know, some some drones that are using the cameras for navigational purposes, but the whole point is, when they’re doing that they’re generally not storing the data, because you’re, you’re collecting a large amount of data. And if you’re running a nationwide program, just the storage of that, incidentally, collected data, you don’t really want it unless you’re, you know, you’re going to use the data as part of like some research and development program, you know, to improve your navigation. But a lot of times when that kind of work is being done, it’s being done, you know, at a test range, or one of these test sites or as part of a pilot program, where it’s more defined, it’s not generally you know, you’re just flying over everybody’s house and and you’re collecting the data and you’re storing it. So I think I think that’s probably, you know, where the where the drone industry, you know, kind of You know, it doesn’t get caught up with that on its daily operations. But it does come into play, you know, if I’m a prime real estate agent and I’m, you know, filming a video of this house that I’m going to sell, and I want to use it online, you know, then depending on where you are, you got to consider like, Well, what else is in the frame? What else is in the video? Do I have to get other people’s permission? You know, how do I film this video, so I’m only getting the video that i i want that I don’t need other people’s permission for. So I think that’s the other place where, you know, the where the industry has this kind of issue.
Justin Daniels 20:35
That’s interesting. Mark has on dealing with some camera issues now because cameras are proliferating across the country for purposes of public safety. So you put them in the right away where there’s less of an expectation of privacy. Now, if there’s a car wreck, you’re going to have every personal injury lawyer calling up wanting camera feeds, because that could help or hinder a case. So I guess how would that apply to drones? I guess it would be the case that if it’s a private company, that’s their data. But if it were for law enforcement, or something else that is collecting data, that I guess that would also be another wrinkle to our patchwork privacy challenge we have in this country.
Mark McKinnon 21:09
Yeah, no, definitely. I think, you know, you see that? Well, I just recently there was the story about how was it? One of the one of the doorbell companies, I forget whether there was the Google product or the Amazon product, there was a disclosure that they were routinely turning over video without the the owners, the homeowners permission to law enforcement, if law enforcement represented that there was an ongoing emergency, they would just turn the video data over without disclosing it. So yeah, I mean, obviously, that kind of thing. If you have a drone, and people know you’re flying, you know, you’re going to be subject to a subpoena or discovery or something, you know, depending on what the data is and who wants it.
Jodi Daniels 21:48
And just as overall theme of federal and state privacy laws, let’s switch a little bit from just our drone fun to what is happening in the privacy space, which is the introduction of a federal privacy law that would preempt various state patchworks that we have. So Mark, I am just curious for your thoughts on you know, everyone’s asking the crystal ball question, how likely is this federal law actually going to be what is your opinion?
Mark McKinnon 22:18
Well, you know, I, I, again, it’s that whole Charlie Brown, Lucy with the football thing, it’s like every, yeah, every once in a while, you figure you feel you’re getting close, and then it’s snatched away at the last second, and you fall on your face. But I think it’s probably closer than it’s ever been. But, you know, until it happens, it doesn’t happen. And, you know, it’s an election year. And there’s a lot going on, you know, I know that, for example, just today, you know, there was another movement, that the President was announcing the build back better version three, I forgotten what they’re calling it now. But mansion had kind of given in. And so now they’re going to be talking about another tax and stimulus bill, you know, that’s going to be making its way through the Congress and through the Senate. And, and that’s going to suck all the air out of the room, you know, in the short term. And then, again, people like people like to go and campaign and, you know, it would seem to me, it’s more likely to happen in the lame duck, part of the session, depending on how the outcome of the election is and not necessarily, you know, something that will happen before the election. But you never know. I mean, maybe people will be desperate to show some kind of progress. And we can all get along and we can all get something done. You know, the became out of the committee with, you know, it was a pretty, pretty bipartisan vote. What was it last week? So you know, I mean, that that bodes well, at least in the house of it getting through my guess we’ll just have to wait and see. Agree.
Justin Daniels 23:42
And, Mark, if you have any really good prognostications about tonight’s Powerball number, they’ll be greatly appreciated. Just pm me and not, not our audience.
Mark McKinnon 23:51
I do and I’ve already bought a ticket for you.
Justin Daniels 23:55
Good point. So kind of talking a little bit more about drones in the FAA. I guess one thing I have as a question for you, given your long experience is, and you know, I got my part 107. So I learned firsthand how seriously the FAA takes safety is, could you see regulation, by the FAA for privacy, and probably more likely security, because security is a straight line to safety? Privacy, it’s a little bit hazy. But you know, a lot of the breach notification laws are keyed off of the kind of data that gets breached. So I just didn’t know if you had any kind of background for audiences to why the FAA has been reluctant to get into these areas. And are you seeing things that might make you think it’ll change or no, that’s really going to be the purview of of federal law or this continued state patchwork?
Mark McKinnon 24:45
I’m gonna get far as the FAA is concerned that they they do not feel that they have the expertise in that area and they just, they want to stay as far away from it as possible. With regard to security knowledge, you’re right that is different and And to a certain extent, it is taken into account somewhat for the more advanced drone operations, because you know, if you’re gonna fly beyond visual line of sight, eventually when those regulations come, you’re going to need a certificated aircraft, which means you’re going to have to go through an FAA design approval, and that it’s going to be have to be manufactured according to specifications. And things like the security of comlinks, and cybersecurity, those are all actually part of the circuit certification process. So those will be considered now when we’re talking about, you know, the small drones that are operated within visual line of sight, I don’t think there’ll be much change because the FAA said they want to stay away from, you know, mandatory design issues, I think, would take an incident where somebody basically took control of a drone, and then use it for nefarious purposes, before people would take that, you know, seriously enough to say, well, the FAA needs to regulate it. And we need to have some kind of encryption standards, and you know, beyond just what the industry is providing on its own.
Justin Daniels 26:00
So Mark, is a follow up question to you. And again, I’m asking for Mark’s crystal ball is how long do you think it’ll be before we start seeing drone flights regularly over our neighborhoods, or more densely urban areas? Do you think that’s 510 15 years out? Because obviously, we have to have what’s called UAS, traffic management, think of air traffic control towers for all these drones buzzing around at 400 feet. I mean, there’s a lot involved to really make this safe and workable from an FAA perspective,
Mark McKinnon 26:30
I think probably, I would say five, or maybe a little less than five rating there, that might be the sweet spot. Because right now, I mean, the big hold up, as you mentioned, is the unmanned traffic management, and then also, just the the protocols and the regulations for beyond visual line of sight flight, where you’re gonna have a highly automated aircraft, you know, that’s really going to be traversing areas. And the FAA concluded a aviation rulemaking committee, they made recommendations not that long ago. And right now they’re working on the regulations, I would expect to see draft regulations on that probably right around the end of the year, and then, you know, there’ll be a notice and comment period, and then maybe a final regulation a year after that. And then, you know, yeah, and that, you know, then it will be like a slow implementation process and getting these other systems in place for five years is probably about right. Because I
Justin Daniels 27:23
guess, Mark, one thing I wanted to ask you about, is, when I read about what they’re doing down in Fort Worth, with Walgreens and some of these other drone operations, getting a waiver from the FAA to fly beyond visual line of sight is exceedingly difficult when they’re doing that five mile delivery, are they literally having people stand around a different mile intervals to watch that drone? Because, you know, as a pilot, you can only see it for so far. I was just curious.
Mark McKinnon 27:49
It depends. It depends on where it is, a lot of these are done as these pilot programs, and some of them have progressed to the point where it’s just done autonomously without an extended line of sight where you have a visual observer every mile and a half who who does that, see it avoid? There’s still a lot of companies that are doing that. But you know, some of the big players, you know, they are they’ve progressed to pilot programs, which are now like truly beyond visual line of sight. And so
Jodi Daniels 28:15
for companies creating privacy programs, whether that’s a drone company, a company using a drone, what are some of the missteps that you see, what are companies not doing that they should be?
Mark McKinnon 28:26
Well, I think one of the big missteps again, is is really well, I mean, a lot of drone companies are relatively small companies, and I’m talking about like, you know, obviously, like a UPS or a Google winning, they have, you know, armies of lawyers who consider all these things. But you know, if I’m just, you know, a guy who does, you know, contracts to do aerial surveillance, for anybody who hire me, construction companies, you know, powerline inspections, things like that. They don’t really, it’s like number 20, on the list of 18 things that they need to do. So I, a lot of times, it just doesn’t get addressed. And I think, you know, apart from the part that, you know, the person who’s contracting with them, they obviously, it’s like, well, this is my data, you’re collecting this data for me, this is what I want you to do with it. You know, those things, they’re, you know, they’re they tend to be up on but the more general things about, you know, am I collecting data when I’m flying around, that isn’t just a customer’s data, that there might be privacy implications for? Or are there different privacy rules, depending on like, I’m here today in this county, and I’m here because you can get, you know, differences in rules, even at the county or town level, you know, in some states. Those things again, I think it’s it’s just the not being aware that there are potentially issues that you should consider. That’s the main thing.
Jodi Daniels 29:47
Awareness is critical, can’t do anything. You don’t know what you’re supposed to be doing.
Justin Daniels 29:54
But I think Mark also makes a really good point that we’ve learned Jodi is the drone industry has a few laws. which players but otherwise is pretty highly fragmented. So smaller companies, as we’ve learned, privacy and security tend to be after thoughts. And once they have a problem if they’ve grown big enough, oh, well, then we’ll deal with it, then Mark, is that been a similar experience in your practice?
Mark McKinnon 30:15
I think you see that a lot. I mean, it’s like, it’s basically, you know, it’s not even just draw just any, any industry that has a lot of startups. That’s obviously the the focus on the business is getting up and running, and then trying to make a name for yourself and be a success and all these other things. You’re right. It’s just, you know, when we get successful, you know, God willing, then we’ll have the time and the opportunity to do it. But unfortunately, a lot of times, it’s like, you know, what, once you’re up and running, it’s like, Okay, now we’re finally making it, it’s like, well, you know, I don’t really have time now, because now it’s a success. And now I got to figure out how to expand and get more employees. And that time never really seems to come.
Jodi Daniels 30:51
It’s never enough time
Justin Daniels 30:53
until you have a data breach or a ransomware event. And then you learn the hard way. It’s funny how Mark technology may change, but human nature is remarkably consistent. Yeah. But anyway, we always like to ask all of our guests, do you have a favorite privacy tip or security tip you’d like to share with the audience?
Mark McKinnon 31:15
I think I think, again, I think one of the best things to do, particularly for a small company, is actually the follow they’ll do unto others. Like whenever you’re considering what you’re doing with people’s data, probably the best rule of thumb is, if somebody’s doing that with my data, I would I wouldn’t make me angry enough that I would do something about it. And so, you know, if you’re doing something that would make you queasy about somebody else doing it, maybe you shouldn’t be doing it. And that’s, I think, probably the first gut check. Then before you then look at, you know, what’s legal and what’s not legal, you know, what, what, am I gonna, you know, how likely is somebody to sue me, you should always start with that. It’s like, well, you know, am I really, at the end of the day doing something that, you know, people would question what I’m doing. And then I think the other main thing is to, you know, be be, be transparent. You know, when you’re dealing with customers and things like that, you know, if you’re, if you have, if you have an idea what you’re doing with their data, it’s probably best to disclose it. And then, and then maybe the last thing is, you know, again, legal legal requirements are really our minimum standards. And you shouldn’t always just figure out well, this is what the law requires, I’m not going to do anything more there. Again, in the aviation industry, you’ll never see any airline saying we meet all FAA minimum requirements for safety. You know, that’s not, that’s not how you operate. And so I think, you know, you should probably take that view into other areas of your business as
Jodi Daniels 32:36
well, that is incredibly well said, I absolutely love that and might be borrowing it. So Mark, when you’re not working in the aviation space, and studying what is happening with drones, what do you like to do for fun?
Mark McKinnon 32:52
Actually, the primary thing I do is a lot of bike riding, I actually, I lived in Bethesda, Maryland, and I had my office in Tyson’s Corner, Virginia. And you could take the metro, and it would take an hour and a half to get there. Or I can ride my bike and would take an hour. And so those are the results with rain or shine. You know, winter, winter and summer, I rode my bike, you know, two and a half hours every day back and forth to work. And you know, it’s, I really, I really enjoyed doing it. And so now I don’t, I don’t do the bicycle commuting as much anymore. But I just try and keep it up on the weekends because I’m just, you know, I really enjoy doing it. It’s just kind of mindless, and you go out there and just kind of cruise along the road. But that’s probably it.
Justin Daniels 33:34
Hopefully cars are nice to you.
Mark McKinnon 33:37
Yeah, well, that was the thing, right? riding home in the winter in Virginia was a challenge because it’s dark. And you no matter how well lit you are. You can see it’s weird. If somebody’s coming at you, you can see their eyes and you can tell sometimes, where they’re looking at you, but they don’t see you. Because for whatever reason, mentally their brain isn’t making the connection, your eyes are on you. But you can see there, they’re just not processing the fact that you’re there. So that’s always a very scary moment.
Jodi Daniels 34:06
That is, if you come to Atlanta, I recommend not biking, we’re not very pedestrian or biking, friendly roads here. We prefer trails. Mark, how can people find you and get connected?
Mark McKinnon 34:22
The best way is again, if you go to our to Fox Rothschild, our O th s ch I LD, my contact information is all on the website. And in addition, we have a blog, it’s Plane-ly Spoken Blog. It’s PLA N E. l y spoken blog. And we cover aviation issues, drone issues and things like that on the blog. So that’s always a good place to find us.
Jodi Daniels 34:45
Very clever name. I love it. Well, Mark, thank you so much for joining us today. It’s been a really enlightening and fascinating discussion. That was great in your favorite topic. Yeah. It’s always a good day when we talk about drones but thank you Add Mark I really appreciate it You’re welcome thanks a lot