Drones ready to fly (photo: Caroline Rubinstein-Willis/Mayoral Photography Office)

A new proposed rule by the NYPD could pave the way for private drone flights over much of New York City, opening a new frontier for anything from high-altitude advertising to spying.

Today, private drone flights are allowed in only a handful of areas on the outskirts of the city, tightly regulated by the Federal Aviation Administration (FAA) and NYPD to ensure safe and unfettered airspace in the nation's highest skyline. The drones currently roving the night sky are government operated or flown illegally by civilians and subject to criminal charges and major fines.

The police department, which has the authority to make rules governing the take off and landing of aircraft, says the private use of drones would be a public good with a host of cultural, academic, and law enforcement applications. But as with other technological advances, civil rights experts say the proliferation of drones – unmanned mini-helicopters that can fly hundreds of feet in the air and carry anything from a piece of mail to a high-definition camera – could expose New Yorkers to previously unimagined invasions of privacy.

That apprehension could set the stage for a battle between the City Council and the administration of Mayor Eric Adams over the proposed rule, which can go into effect under city law after a public hearing.

“I am concerned about the introduction of these proposed safety tools in our community," said Council Member Nantasha Williams, a Queens Democrat and chair of the Council’s Committee on Civil and Human Rights, in an email to Gotham Gazette.

"I am committed to utilizing my oversight to ensure that community concerns around privacy are heard and addressed, and to work towards finding a balance that upholds both security and the fundamental rights of our residents,” Williams added.

The rule would require permits to operate a drone for a police-approved purpose with few limits. It would make it a fine – $250, for a first violation, up to $1,000 – to fly a remote aircraft without one. Currently, taking off and landing in New York City is a misdemeanor, except in an emergency. The rule comes after a settlement between the city and Xizmo Media Productions, a company that specializes in drones for film and TV, after the firm sued over the city's restriction on federally regulated air space.

A hearing on the proposal is scheduled for July 7 at One Police Plaza. Members of the public may submit a written comment or sign up to testify through the city's online portal.

The NYPD cites drones' use in film, rescue efforts, "research projects, and…surveys," to justify the new proposal.

"As drones have been increasingly used to film stunning cinematic videos, support first responder rescue efforts, aid in research projects, and conduct surveys, it is clear that the City must balance the ever present safety and privacy concerns inherent in widespread drone use against the important gains that may result from this new technology," reads the NYPD's proposed rule.

The department would not say whether there would be limits on the number of private drone flights in total or by a single permit-holder.

Civil rights advocates have pointed out that while there are some First and Fourth Amendment limitations on the way police can use drones to watch people inside their homes or at protests and other political or social gatherings, there are few restrictions on the way police can later use footage obtained by a third party.

"We already see stationary cameras all across the city, feeding our data to private vendors and data brokers that are willing to sell it to the highest bidder," said Albert Fox Cahn, a privacy lawyer and executive director of Surveillance Technology Oversight Project (STOP). "There's nothing in the proposal to stop drones from taking off as the next form of surveillance capitalism."

While the FAA currently prohibits some drone flights over people without permission, Cahn warned the rule could enable a new form of mass surveillance in the nation's most densely-populated city. A private drone hovering thirty storeys in the air may capture footage through a bedroom window that could later become admissible as evidence in court, he said.

Others have raised concerns that, coupled with biometric tools like face and gait recognition technology, private corporate drone flights could give rise to even more invasive forms of data tracking.

"Billionaires and corporations have seized on new technologies like facial recognition and artificial intelligence to make record profits and discriminate against those they see as ‘undesirables,’ and the ability to take to the skies will only supercharge their surveillance capabilities," said State Senator Brad Hoylman-Sigal, a Manhattan Democrat, in a statement to Gotham Gazette. "There may be legitimate uses for unmanned aerial vehicles on an extremely limited case by case basis, but the negatives appear to outweigh the positives in New York City.”

"Should this proposed rule move forward, we would certainly discuss potential legislation to address the privacy concerns" of civil rights advocates, added Hoylman-Sigal's chief of staff, Kenan Kurt, in an email.

Hoylman, who sponsors multiple bills to regulate the use of biometric data in law enforcement, public accommodations, and housing, said "noise and annoyance" from drones is also a major concern. (The State Senator was among the critics of a popular digital app company that used 500 light-up drones to advertise in the night sky off the coast of Manhattan last fall. That stunt also raised alarms among environmentalists who said the drones could endanger migratory birds.)

Police routinely use footage from CCTV cameras in and around stores and buildings, and its Domain Awareness System has a live feed from tens of thousands of private cameras around the city. The NYPD also has a history of unlawful searches and surveillance, including the stopping-and-frisking of hundreds of thousands of mostly Black New Yorkers and spying on Muslim residents for years after September 11, 2001 (in the latter case, a judge ruled the NYPD has a “systemic inclination” to ignoring constitutional protections).

Meanwhile, the sale of personal information – everything from cell-phone location data to reading habits – has become big business in the digital age. Corporations and private data brokers use and sell personal information to track and restrict behavior, target advertising, and set prices. A recently declassified report for U.S. Director of National Intelligence Avril Haines showed federal intelligence agencies routinely use commercially available personal data – even without suspicion of a crime – that would otherwise require a warrant to obtain.

Companies like Uber, AT&T, and the Motion Picture Association of America have in the past lobbied city officials to open up the skies to private drones, according to City & State New York. A so-far unsuccessful 2018 bill sponsored by City Council Member Justin Brannan, a Brooklyn Democrat, would have allowed unmanned flights under the jurisdiction of the Department of Transportation. Brannan did not respond to a request for comment for this story.

The NYPD did not expand upon the rule's applications after inquiries by Gotham Gazette. "The City must balance the safety and privacy concerns of its citizens with the increased interest in the use of drones," a spokesperson wrote by email.

A spokesperson for Mayor Adams said the rule was reviewed by the city's Chief Privacy Officer, Michael Fitzpatrick, and referred Gotham Gazette to the statement of purpose included in the proposed rule text.

Under the proposal, applicants must apply for a permit to fly a drone in city airspace (in areas not otherwise restricted by the FAA) within 30 days of each flight. Private fliers must be insured and certified with the FAA, and will have to specify the time, site, and purpose of the flight. The NYPD may reject an application if the proposed mission violates the law, or if the drone site would be in use "for an unreasonable length of time longer than 24 hours." Permit-holders must notify the local community board and post bulletins before a flight recording video, audio, or still images.

The rule would require applicants to submit a data privacy policy but doesn't stipulate any minimum standards of protection, leaving discretion entirely within the NYPD.

"It's quite concerning that not only is that an ongoing blind spot in New York law but that it's the NYPD that's being entrusted with making these rules," Cahn said. "It's hard to imagine an agency with a worse privacy track record being entrusted with this task."

Adams' spokesperson said the NYPD would reject applications with weak data policies but wouldn't respond to concerns that the department is left to essentially police itself when it comes to ensuring footage doesn't fall into the wrong hands, including its own.

While the FAA has jurisdiction over the airspace, city law regulates the take-off and landing of aircrafts within the five boroughs and gives the police commissioner the power to make rules as they "deem necessary to enforce the provisions of this section" (the section itself, known as the Avigation Law, outlaws take-offs and landings in New York City outside airports and helipads, "except in an emergency," along with parachuting and external advertising like banners and pamphlet-dropping).

The rule has the sign-off of Steven Goulden, senior counsel in the city's Law Department, and Francisco Navarro, senior policy advisor in the Mayor's Office of Operations.

The proposed expansion comes as city and state leaders take increasing steps to expand digital surveillance in virtually every public corner of the city. Both Adams and Governor Kathy Hochul have embraced the symbol of "Big Brother," the faceless dictator in George Orwell's dystopian classic 1984 who controls the citizenry through total surveillance.

“It blows my mind how much we have not embraced technology, and part of that is because many of our electeds are afraid. Anything technology they think, ‘Oh it’s a boogeyman. It’s Big Brother watching you,’” Adams told Politico in December. “No, Big Brother is protecting you.”

“You think Big Brother’s watching you on the subways? You’re absolutely right,” Hochul said in September at a press conference announcing a plan to place security cameras in every subway car.

"Omnipresence, what a great word," said Janno Lieber, chair and CEO of the Metropolitan Transportation Authority (MTA), at a press conference with Hochul and Adams in Grand Central Terminal a month later, where they announced the latest phase in a plan to flood the subway system with cameras and police officers as part of an effort to address crime and untreated mental illness.

In December, MTA New York City Transit President Richard Davey said in testimony before the City Council that the MTA was looking at integrating artificial intelligence into its video security, to "focus us in.” A spokesperson for the MTA would not elaborate on the AI under consideration, citing "security reasons" to Gotham Gazette. By January, the NYPD was receiving live feeds from 5,100 of the MTA's 11,500 security cameras with footage from the rest accessible remotely, according to an MTA spokesperson at the time.

More recently, Adams came under fire after he announced the relaunch of K-9-style police robots, known as "Digidogs," and another autonomous surveillance android, the K-5 – two years after the NYPD backed off the program following a public backlash. That announcement, in April, was criticized for apparently circumventing the POST Act, a city law that requires new police technologies to first go through a public review process.