Comparing public concern and support for ... - Wiley Online Library

Received: 1 February 2018

Revised: 12 April 2018

Accepted: 23 May 2018

DOI: 10.1002/bsl.2357

RESEARCH ARTICLE

Comparing public concern and support for drone regulation to the current legal framework Adam Zwickle1,2,3

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Hillary B. Farber4

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Joseph A. Hamm1,2

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School of Criminal Justice, Michigan State University, East Lansing, MI, USA

Abstract

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In this study we assess the extent to which the regulations

Environmental Science and Policy Program, Michigan State University, East Lansing, MI, USA

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Department of Community, Michigan State University, East Lansing, MI, USA

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University of Massachusetts School of Law, Dartmouth, MA, USA Correspondence Adam Zwickle, Assistant Professor, School of Criminal Justice, Environmental Science and Policy Program, Department of Community Sustainability, Michigan State University, 502 Baker Hall, 655 Auditorium Road, East Lansing, MI 48824, USA. Email: [email protected]

governing the use of drones in the United States address the concerns held by the public they are meant to protect. In general, respondents were most supportive of those regulations that could be categorized as limiting one's exposure to an unwanted drone. The most popular policies were those that protected personal privacy, while the least popular were those that hampered drones used for public safety. The largest discrepancy was found to be respondents' preference for laws protecting personal privacy compared with the lack of regulatory constraints currently in place. Federal regulators have only begun to introduce regulations on how drones can be used in our national airspace, with additional regulations for other types and sizes of drones likely to be introduced in the future. The results of this study may be utilized by regulators and lawmakers to create a regulatory structure that effectively mitigates risk and supports the public interest.

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I N T RO DU CT I O N

Regulating new technologies, particularly those whose use is rapidly expanding, is a difficult task for a governing body. Effective regulations are those that not only mitigate the real‐world objective risks, but also address the more subjective fears and concerns of the public (Loewenstein, Weber, Hsee, & Welch, 2001; Slovic, Finucane, Peters, & MacGregor, 2004). A panoply of new risks may arise whenever a new range of products is first being introduced to society. Moreover, when an emerging technology does not fit neatly within a pre‐existing regulatory scheme, regulators have the difficult task of creating new rules that do not conflict with existing ones. In the absence of an established record of risk assessment data, regulations of new and emerging technologies are largely based on ethical considerations, perceptions of risk, or their potential impacts. This is the case with regard to unmanned aerial vehicles, more commonly referred to as drones, and the potential threat they pose to manned aircraft and persons on

Behav Sci Law. 2018;1–16.

wileyonlinelibrary.com/journal/bsl

© 2018 John Wiley & Sons, Ltd.

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the ground. Thanks to work of researchers in the field of nanotechnology, there exists a rich philosophical and ethical framework to draw upon when considering regulatory approaches. When technical risk assessment data are unavailable and the risks and benefits of a new technology can only be anticipated, regulators often rely on the precautionary principle, favoring rules that limit rather than permit usage (Hunt & Mehta, 2013). New and emerging technologies often present situations where existing morals, which are typically self‐evident, can be called into question (Swierstra & Rip, 2007). The risks presented by unmanned aircraft can be grouped into the broad categories of safety and privacy. The safety risks are relatively straightforward, stemming from the potential for drones to cause accidental or intentional harm to an individual or group. Drones can fly at a range of altitudes, from a few feet off the ground to upward of hundreds of feet in the sky and have the potential to collide with objects both on the land and in the air. They also have the potential to malfunction and fall from the sky, causing injury to people or property on the ground. Safety risks are present dangers, with commercial airplane pilots reporting near misses with drones and lawsuits involving injury to persons struck by drones that fell from the sky. Regulating air traffic and safety in the national airspace is within the jurisdiction of the Federal Aviation Administration (FAA). Since 2013 the FAA has established rules that pertain to where, how, and who can operate drones in public airspace. Risks to one's privacy, however, are significantly more difficult to both mitigate and regulate. The privacy concerns relating to drones stem from the types of technologies presently available which include high‐resolution cameras, global positioning systems, night vision infrared cameras, thermal imaging devices, Wi‐Fi sniffers, automated license plate readers, and facial recognition software. Even the most basic types of drone used primarily by recreational users are often equipped with a 14 megapixel camera, live video streaming capability, a minimum of 8 gigabytes (GB) of internal memory and a data processor which can transmit information to the ground control unit (Phantom 4, 2017). Given their capabilities to hover over people and places, these technologies allow drones to record people in places they traditionally thought were private. Drones render fences and walls irrelevant to those seeking to keep out the unwanted eye. Once collected, this information can be broadly disseminated and stored forever. In this paper we discuss how safety and privacy with regard to drones are regulated in the United States, connect those laws to levels of policy support as measured in a nationally distributed online survey, and offer several suggestions for future research.

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Current regulatory landscape

Government agencies were the first to use unmanned aircraft in the United States (Farber, 2014). In 2013, FBI director Robert Mueller testified before Congress that the FBI had been using unmanned aircraft for domestic surveillance. Custom and Border Protection increased their drone flights eight‐fold between 2010 and 2012. Police departments throughout the country have acquired drones for uses including search‐and‐rescue, surveillance, and traffic monitoring. Recreational drone use by private citizens, however, has grown exponentially in comparison due to their popularity and low cost. In 2012 under the Federal Aviation Administration Modernization and Reform Act, Congress ordered the FAA to develop a plan to integrate unmanned aircraft into the national airspace with a deadline of September 2015. The FAA classified drones according to size and function and promulgated regulations for recreational users, commercial operators flying drones under 55 lb, and public agency personnel using drones for government purposes. Regulations pertaining to recreational drone use, defined as any operation not for profit or commercial gain, fall under the FAA rules for all model aircraft which prohibit careless and reckless operation. Recreational drones are prohibited from flying within five miles of an airport, operating within “drone free zones” (such as sporting events), must fly below 400 ft and within the visual line of sight of the operator, and comply with all state and local laws (Federal Aviation Administration Modernization and Reform Act of, 2012). If an operator fails to follow these rules or operates in a careless or reckless manner, the FAA can issue a fine against the operator (§19.13). In December

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2015, the FAA instituted a registration requirement for all recreational users mandating that before taking flight, operators aged 13 years or older must register their drone with the FAA, which includes providing a current address, email, and paying a $5 fee (FAA, 2015). Within the first 2 weeks, 181,061 drones had been registered (Leitersdorf, Schreiber, & Reznikov, 2016). By the end of the first full year, 616,000 owners and individual drones were registered on FAA's system (FAA, 2016a). Perhaps the most significant regulation concerning drone operation in the US came in 2016 with the announcement of a less burdensome licensing process for commercial operators. On 29 August 2016 new rules took effect for commercial drones weighing under 55 lb (Operation and Certification of Small Unmanned Aircraft Systems, 2016). These rules simplified and expedited the licensing process for commercial operators to fly unmanned aircraft. Previously, commercial users could not operate without prior approval from the FAA. Those seeking authorization would apply for a waiver under section 333 of the Federal Modernization and Reform Act of, 2012. Approval came in the form of a Certificate of Authorization (COA). The length of time it took to obtain a COA averaged between 4 and 6 months, once all documents were submitted to the FAA (Rapp, 2015). Under this application system, the FAA issued more than 6,000 approvals (Kang, 2016). With the onset of the new rules, businesses are able to advance their drone operations quicker and more efficiently. A key component of the streamlined process is that businesses will no longer have to seek prior authorization and may commence once the operator completes a written exam and is vetted by the Transportation Security Administration. Some of the most significant new rules affecting operation include the following: commercial drones must stay within the visual line of sight of the pilot or the pilot's “visual observer”; the pilot must avoid controlled space such as airports; operation is restricted to daylight hours; the drone must fly under 400 ft above ground level, with a maximum speed of 100 mph, and may not operate above any person not directly participating in the operation (FAA, 2016b). Even these restrictions, however, can be waived by the FAA upon request. Additionally, all drones must be labeled with the appropriate markings and registration. Since the 2016 rule eliminated much of the bureaucracy involved in obtaining authorization to fly a drone, the drone industry has seen unprecedented growth. The Consumer Technology Association projected 2.8 million drone sales in 2016, a 149% increase over 2015 (Hubbard, 2017). The FAA estimates that seven million drones will be operating by 2020, tripling the number in a mere 4 years from an estimated 2.5 million in 2016. Included in this projection are both hobby drones, climbing from 1.9 million to 4.3 million in 2020, and commercial drones, increasing from 600,000 in 2016 to 2.7 million in 2020. The new rules have given the green light to businesses to begin executing their plans for applying drone technology to a multitude of uses from aerial photography to agricultural applications. As drones proliferate, however, so to have incidents involving unwelcome intrusions into personal privacy. News stories of people alarmed by the presence of a drone peering into the window of their home or flying over their property taking pictures of activities not viewable from ground level have become more frequent.

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Lack of privacy regulation

While the 2016 rules provide a comprehensive framework for integrating small commercial drones into the national airspace, they strictly focus on ensuring air safety. The FAA plainly states that its mission is “to provide the safest, most efficient aerospace system in the world, and does not include regulating privacy” (FAA, 2016b). The explanation given by the FAA as to why the rules are largely silent on privacy protections is that the administrative agency is tasked with ensuring safe and efficient airspace. In other words, the FAA has neither the intent nor the mandate to issue or enforce regulations specifically aimed at protecting privacy. What this means for the general public is that, absent a state or local law limiting a drone's ability to hover over private property or use its platform‐mounted camera to peer in windows, people may be exposed to intrusive surveillance with little or no legal protection. In response to growing privacy concerns, state and local lawmakers nationwide have initiated laws to limit the use of drones. Since 2013 there has been unprecedented legislative activity among states to restrict how, where, and by whom, unmanned aircraft in general can be operated. Every state has initiated legislation on drone use.

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Presently, 31 states have passed laws that expressly regulate the operation of unmanned aircraft (Essex, 2017). These regulations, in general, set parameters for drone operation and regulate the collection of information gathered by drones. Some go so far as to limit the retention, and dissemination of the information collected by the drone operator. Many cities and towns have passed local ordinances banning drones from their jurisdiction. The main purpose of this legislative action is to protect privacy. Efforts to create an enforceable privacy interest are evinced in the titles of the legislation: Florida, “Freedom From Unwanted Surveillance Act” (2013); Vermont, “An Act to Protect Privacy” (, 2015); Idaho, “Preserving Freedom From Unwanted Surveillance Act” (2013). Among these new drone‐specific laws, the most common is the prohibition of private drone operators recording a person without his or her consent. One of the first states to grant a legal remedy against anyone who, without prior consent, uses a drone to capture images of persons or objects on private property where a reasonable expectation of privacy exists was Florida (Search and Seizure Using a Drone, 2015). The Florida statute defines reasonable expectation of privacy as being when a person cannot be seen by others at ground level, where they have a legal right to be, regardless of whether he or she is observable from the sky. Several states have enacted similar statutes containing altitude restrictions, the requirement that the operator maintain a visual line of sight with the drone at all times, and prohibitions on night‐time use. Oregon and Nevada have passed laws that prohibit anyone from flying a drone at 400 or 250 ft, respectively, above another person's property without prior consent (Aircraft Operations, 2016; Assembly Bill 239, 2015). Nevertheless, these types of drone restrictions present obstacles to compliance. For instance, many operators will have difficulty determining if their flight is above the restricted altitude. Moreover, it would be virtually impossible for anyone flying a drone, other than over their own property, to avoid capturing the images of hundreds of persons and properties with the factory‐installed camera and live streaming video capability.

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Lack of protection under the Fourth Amendment

Some of the earliest drone‐specific state laws focused on requiring law enforcement to obtain a warrant prior to using drones for criminal investigations. These state laws frequently include exceptions for emergency situations, search‐and‐rescue missions, and terrorist threats. The impetus for creating laws restricting government use of drones stemmed from a concern that the United States constitution might not prohibit law enforcement from conducting warrantless surveillance of individuals for whom they had no probable cause or reasonable suspicion. Beginning in 2012, states began passing laws that restricted how public agencies, including law enforcement, could collect data pertaining to individuals to ensure that, absent the protections of the Fourth Amendment, individuals would not be left without legal recourse to protect their privacy from unwanted intrusions by government drones. The Fourth Amendment, meant to protect people's right to privacy and freedom from arbitrary governmental inspections, places few if any restrictions on aerial surveillance, as courts treat public airspace similarly to public thoroughfares. If the government uses an aircraft to make observations from the navigable airspace, those observations are not considered to intrude upon a person's reasonable expectation of privacy. The US Supreme Court has been consistent in cases from the 1980s that deal with planes and helicopters whereby, if one wants to keep one's privacy protected from aerial view, one must take steps to obstruct the aerial view because the aircraft is in a lawful vantage point when recording the people and places on the ground. While the characteristic of a drone differs significantly in many ways from planes and helicopters, drones are too nascent a technology to expect courts to have resolved whether they fit within the rubric of the Fourth Amendment. State lawmakers have responded to that legal uncertainty by enacting laws that require police and other public agencies to obtain a warrant before using drones to conduct surveillance on Americans. In sum, the current regulatory structure implemented and enforced by the FAA aims to ensure safety in the sky, while the concerns regarding privacy risks associated with drones are being addressed by individual states and local governments. Bureaucratic directives aside, this split approach may be the most appropriate and effective way of regulating (and mitigating) these two very different risks. Safety can be seen as a black‐and‐white issue (protecting the public from physical harm), while what constitutes a violation of one's privacy varies depending on notions about

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reasonable expectations of privacy, which are likely to be influenced by cultural and ideological factors. So while safety may be successfully regulated at the federal level, effectively regulating privacy requires legislative action at the state and local levels. As a practical matter, state and local government are in a better position to respond to the concerns of their constituents and are more familiar with the characteristics of their communities when addressing those specific concerns (Farber & Nodiff, 2017).

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Public attitudes and concerns towards drones

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In light of the proliferation of drones throughout the United States within the past 3 years, it is reasonable to assume that public attitudes towards drones are evolving (Clothier, Greer, Greer, & Mehta, 2015). In the US, what little research that has been done regarding public attitudes towards drones has found that these are context‐specific, varying significantly based on what the drone is being used for (Lieberman, Miethe, Troshynski, & Heen, 2014; Miethe, Lieberman, Sakiyama, & Troshynski, 2014). Privacy concerns have been shown to be nuanced as well, with people expressing concern over threats to physical privacy (solitude) and informational privacy (collecting and sharing images) as well as what is considered a private space (Wang, Xia, Yao, & Huang, 2016). So while the use of drones is being regulated rather broadly, with state and federal regulations classifying them simply under recreational, commercial and law enforcement purposes, the public's level of concern regarding them varies in response to a multitude of factors.

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This study

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In this study we compare the level of support for a variety of different types of drone regulations with those currently in place at the federal and state level. Data were collected in the fall of 2015, before the FAA Small UAV Rule was announced. The goal of this research is to assess the extent to which the regulations now in place address the concerns held by the public they are meant to protect, and to understand the factors motivating respondent's support for various regulations. This research adds to the scant literature on public attitudes and concern towards drones by analyzing the current regulatory landscape governing their use in the US in light of their perceived risks and presents a unique opportunity to study not only the extent to which initial regulations have addressed public concerns, but also how current public attitudes may influence future regulations and laws. The results of this study may be utilized by regulators and lawmakers to create a regulatory structure that effectively mitigates risk and supports the public interest.

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METHODS

To assess the alignment of public support for policy and the current FAA regulations, we recruited a nationwide convenience sample via Mturk to complete an online survey (n = 768). Although Mturk samples lack the ability to generalize to the entire population with a specific margin of error, research regularly suggests that they are more representative than standard convenience samples because of the variability in respondents (Berinsky, Huber, & Lenz, 2012). After answering a series of baseline risk perception questions, respondents were asked what kind of risk (i.e., risks to either privacy or safety) they were most concerned about. Following this, participants were randomly assigned to see one of five drones. Specifically, participants were assigned between groups to see a small commercial drone (n = 168), a small recreational drone (n = 148), a medium‐sized law enforcement drone (n = 177), or a medium‐ sized search‐and‐rescue drone (n = 144). We also included a condition in which participants saw an Amazon Octocopter (n = 131) but it is important to note that this drone is not currently in operation in the US (see Table 1). It was included because of its likely salience to respondents and the possibility of using drones to deliver packages in the near future. Each drone was accompanied by a brief description of the drone itself, its use, and the laws

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Drone conditions and regulatory information presented to respondents

Drone

N

Description and use

Regulatory Information

Amazon

131 The drone pictured on the right is the If they enter service, new regulations Amazon Octocopter. It is a will need to be created for these prototype that Amazon hopes to drones. Currently regulators do not use to deliver small packages. permit package delivery via drone. Although it is not yet in operation, please respond as though this drone was already being used.

Commercial

168 The drone pictured is the Parrot Bebop. It is widely available and is often used by small businesses to collect commercial video. Some users include wedding videographers, real estate agencies (to provide aerial footage of properties), and farmers (for crop monitoring).

The regulators of commercial drones like these have set rules that generally prohibit their use unless the operator acquires a specific exemption to use them. These exemptions are not especially rare but they are issued only after a lengthy application process, which can also be expensive.

Recreational

148 The drone pictured is the Parrot Bebop. It is available to the public and is often used for personal recreation.

The regulators of these drones have set rules which permit anyone to use them but require that operators do not endanger the life or property of others with these drones. Recreational drones like these are also required to be flown within the visual line of sight of the person operating them, to avoid all manned aircraft, and fly at an altitude below 400 ft. Operators may be fined up to $10,000 for “careless and reckless operation” of these drones.

Picture

Regulators only allow public service Law enforcement 177 The drone pictured is the drones like these to operate if the AeroVironment Shrike. It is used by agency that wants to use them police agencies to provide video obtains a Certificate of surveillance. Authorization from the regulator. It is not uncommon for these regulators to issue such licenses to public agencies and there is an official record of the agencies that have requested authorizations each year. Search and rescue

Regulators only allow public service 144 The drone pictured is the drones like these to operate if the AeroVironment Shrike. It is used by agency that wants to use them local government agencies to obtains a Certificate of provide aerial video for search and Authorization from the regulator. It rescue. is not uncommon for these regulators to issue such licenses to public agencies and there is an official record of the agencies that have requested authorizations each year.

regulators had enacted at the time. Participants were then asked to think about their specific drone as they completed the remainder of the survey. The centerpiece of this study was a series of questions regarding the respondent's regulatory preferences. The regulation scenarios were chosen based both on past research identifying salient risks among the public with regard to drone use (Clothier, Greer, Greer, & Mehta, 2015; Lieberman et al., 2014; Miethe et al., 2014) and by their regulatory context, each question representing a method to regulate an important risk posed by drones. Participants

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were asked the extent to which they would support seven different regulations which would ban or limit the use of drones or add an additional requirement to pilots. Response options ranged from 1 (“definitely no”) to 5 (“definitely yes”) with a midpoint of “undecided.” Regarding the bans, participants were asked if they would vote for a complete ban, a temporary ban until regulators studied the issues in‐depth, or a ban from flying a specific drone at night. Regarding the limits, two questions asked whether the participant would vote to limit how long the drones could hover continuously or how much video they could capture. Finally, participants were asked if they would vote for a regulation that would require drone operators to get consent from anyone whose image was captured by the drone's camera, regardless of whether it was intentional or unintentional. The survey concluded with attitudinal items measuring the perceived trustworthiness of those piloting the drone and those responsible for its regulation, the overall level of comfort respondents felt with the drone continuing to operate, and basic demographics. Trustworthiness was measured using the drone actor trustworthiness (DAT) scale. The DAT scale operationalizes arguments from a particularly influential model of model of trust (Mayer, Davis, & Schoorman, 1995) in the context of drones, using two nine‐item scales to address perceptions of the ability, benevolence, and integrity of drone operators and regulators separately. Responses were scored on a Likert‐type scale [with response options ranging from 1 (“strongly disagree”) to 7 (“strongly agree”); Table 2). Comfort was measured with a single item (“Now, given everything that you know about drones, how comfortable do you feel with allowing these drones to continue operating?”) with response options ranging from 1 (“very uncomfortable”) to 5 (“very comfortable”). The final items in the survey collected demographic information, including age, gender, race, and income.

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RESULTS

We began our analysis for this study by first evaluating our survey constructs (Table 3). Regarding the type of risk that respondents were most concerned about, the complete sample was roughly evenly divided, with 49.9% (n = 383) identifying privacy as the primary concern and 50.1% (n = 385) identifying safety. TABLE 2

Operator and regulator trustworthiness scales Α

Sub‐construct

Item

Operator ability

The operators are generally competent. 0.93 4.79 The operators of these drones are capable of flying these drones. 5.05 The operators of these drones have the knowledge necessary to fly drones. 4.89

1.33 1.34 1.47

Operator benevolence

The operators of these drones care about people like me. The operators of these drones are concerned about how their actions would affect people in situations like mine. The operators of these drones care about concerns that are important to me.

3.62 3.79

1.55 1.61

3.66

1.56

Operator integrity

The operators of these drones think it's important to do the right thing. The operators of these drones would be honest about actions if there was a problem. The operators of these drones have integrity.

4.28 3.68

1.40 1.55

4.20

1.28

Regulator ability

The regulators of these drones are generally competent. The regulators of these drones are capable of regulating these drones. The regulators of these drones have the knowledge necessary to regulate drones.

0.95 4.88 4.67 4.86

1.30 1.50 1.45

Regulator benevolence The regulators of these drones care about people like me. The regulators of these drones are concerned about how their decisions affect people in situations like mine. The regulators of these drones care about concerns that are important to me.

3.96 4.25

1.52 1.54

4.11

1.56

Regulator integrity

4.60 4.05

1.42 1.59

4.46

1.33

The regulators of these drones think it's important to do the right thing. The regulators of these drones would be honest about actions if there was a problem. The regulators of these drones have integrity.

Mean SD

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TABLE 3

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– Survey constructs

Variable

Mean or valid percentage

Most important risk

Privacy = 49.9%

Safety = 50.1%

Gender

Male = 46%

Female = 55%

Race

White = 82%

Non‐White = 18%

Age

M = 41.53

SD = 13.21

Complete ban

M = 2.49

SD = 1.31

Temporary ban

M = 3.03

SD = 1.36

Night ban

M = 3.32

SD = 1.28

Private property ban

M = 3.85

SD = 1.19

Hover limit

M = 3.57

SD = 1.24

Video limit

M = 3.46

SD = 1.30

Consent

M = 3.77

SD = 1.22

Operator trustworthiness

M = 4.22

SD = 1.17

Regulator trustworthiness

M = 4.43

SD = 1.25

Comfort

M = 3.13

SD = 1.29

We next evaluated support for the seven policies. Overall, respondents were the most supportive of prohibiting drones from flying over private property (M = 3.85) and were least supportive of a complete ban (M = 2.49; see Table 4). Separating the sample by drone, respondents reported the greatest support for a ban of recreational drones being flown over private property (M = 4.08), while the lowest support was for a complete ban of the search‐and‐rescue drone (M = 2.03). To evaluate whether levels of policy support differed significantly by drone, we compared each drone condition with the mean of the remaining participants using dummy codes. Support for regulations regarding the Amazon and law enforcement drones were typically higher than the rest of the sample. The search‐and‐rescue drone also significantly differed from the others across the seven different policy options, with participants preferring less regulation limiting how drones can be used for search‐and‐rescue purposes. Having established the descriptive patterns within the data, we next moved to test whether support for the regulations differed as a function of the attitudinal variables on a bivariate level. We first tested mean differences in regulation support by the most important risk perceived (safety, privacy). As reported in Table 5, support was significantly higher for every regulation when the participants were most concerned about privacy risks. Similarly, we tested the correlation between each individual's level of support for the various regulations, and the participants' overall level of comfort with that drone continuing to operate (Table 6). Across policies, the strongest correlations were found for those policies focusing on banning drone operation, so that as perceived trustworthiness in operators TABLE 4

Mean support for regulation by drone (1 = definitely no, 5 = definitely yes) Sample mean

Amazon drone

Commercial drone

Recreational drone

Law enforcement drone

Search‐and‐rescue drone

Complete ban

2.49

2.59

2.29*

2.55

2.91***

2.03***

Temporary ban

3.03

3.25*

2.86

2.87

3.46***

2.61***

Night ban

3.32

3.62**

3.25

3.36

3.43

2.92***

Private property ban

3.85

3.66

3.95

4.08**

4.03*

3.44***

Hover limit

3.57

3.86**

3.44

3.51

3.72

3.33**

Video limit

3.46

4.01***

3.24*

3.36

3.48

3.29

Consent

3.77

3.86

3.91

3.76

3.80

3.51**

Note. Darker shading indicates greater support across both rows and columns (sample mean is excluded). Superscript indicates significant differences when comparing the drone type with the rest of the sample; *p < 0.05, **p < 0.01, ***p < 0.001

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TABLE 5

Mean support for regulation by most important perceived risk (1 = definitely no, 5 = definitely yes)

Regulation

Privacy

Safety

Comparison

Complete ban

2.64

2.34

F (1, 737) = 10.09, p = 0.002

Temporary ban

3.14

2.91

F (1, 737) = 5.31, p = 0.02

Night ban

3.43

3.21

F (1, 737) = 5.28, p = 0.02

Private property ban

4.03

3.67

F (1, 737) = 17.76, p < 0.001

Hover limit

3.70

3.45

F (1, 737) = 7.63, p = 0.006

Video limit

3.65

3.27

F (1, 737) = 16.42, p < 0.001

Consent

3.90

3.65

F (1, 737) = 7.47, p = 0.006

and regulators went down, and as respondents were less comfortable with their assigned drone operating, they were increasingly supportive of a complete ban. Across the attitudinal measures in general, the strongest correlations were found with the respondent's level of comfort for their assigned drone to continue operation, and the lowest correlations were found with the perceived trustworthiness of drone regulators. In order to understand the motivations behind the respondent's level of support for regulation policies, we conducted a series of multiple regressions. In each regression, support for the regulation was regressed on a dichotomous variable indicating the risk the participant thought was most important (coded 1 = privacy; 2 = safety), a series of dummy codes indicating the assigned drone (law enforcement was the reference group), perceived operator and regulator trustworthiness, gender (coded 1 = male; 2 = female), year of birth, and race (coded 1 = White, 0 = non‐White). As reported in Table 7, the risk that respondents were most concerned about significantly predicted support for three of the seven regulations such that those who were most concerned about privacy were more likely to support each regulation. Concern about privacy risks had the largest effect on support for a private property ban. The assigned drone was also predictive in each model, but the presence and strength of this effect varied with both the type of drone and regulation. Because the reference condition was law enforcement, all significant effects are in comparison to that drone such that, for those receiving the Amazon drone, individuals were more likely to support the regulations than those in the law enforcement condition. Regulatory support among those receiving the remaining drones, however, was lower relative to those considering the law enforcement drone. In each of the models, the perceived trustworthiness of drone operators was the most important predictor, so that as perceived trustworthiness increased, support for the regulations decreased. The trustworthiness of the regulators, however, was a significant predictor in only three of the models, and the size of its effect varied considerably. Changes in regulator trustworthiness were most strongly associated with changes in support for a complete ban on drones, while the smallest effect was found for support for a ban on flying over private property. Finally, gender was a significant predictor of policy support for all but one drone, with females reporting higher levels of support, while age and race exhibited small effects in only a couple conditions. Overall, the variance explained in each of the models was highly significant, with R2‐values ranging from 0.17 (requiring consent of anyone captured on video) to 0.41 (complete ban).

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DISCUSSION

The goal of this study was to assess the extent to which the level of public support for various drone regulatory policies, as measured in the fall of 2015, align with federal, state, and local regulations and to understand the drivers and correlates of that support. In general, members of our online survey panel were most in favor of those regulations that limited the operation of drones in some way, and less in favor of the more severe policies banning their use either temporarily, just at night, or completely. The most important factor in predicting an individual's level of support for a specific regulatory policy was the perceived trustworthiness of the person operating the drone, where one was more supportive of regulation when they found the operator less trustworthy.

−0.27

−0.30

−0.19

−0.30

−0.31

−0.48

−0.46

−0.28

−0.40

−0.28

Night ban

Private property ban

Hover limit

Video limit

Consent

−0.38

−0.39

−0.40

−0.36

−0.46

−0.48

−0.10ns

−0.21

−0.26

−0.13ns

−0.22

−0.32

−0.43

−0.24

−0.38

−0.48

−0.29

−0.45

−0.59

−0.61

Comf.

Note. All values are significant (p < 0.05) unless otherwise noted. ns, not significant

−0.30

−0.41

−0.41

−0.47

−0.57

−0.58

−0.54

−0.41

−0.55

Temporary ban

−0.71

−0.55

−0.57

Complete ban

RTW

Commercial drone OTW

RTW

Comf.

Amazon drone

−0.35

−0.30

−0.38

−0.33

−0.37

−0.38

−0.44

OTW

−0.20

−0.16ns

−0.22

−0.24

−0.23

−0.20

−0.45

RTW

Recreational drone

−0.31

−0.27

−0.46

−0.35

−0.48

−0.64

−0.66

Comf.

−0.42

−0.46

−0.44

−0.41

−0.46

−0.44

−0.57

OTW

−0.30

−0.38

−0.42

−0.32

−0.42

−0.47

−0.56

RTW

−0.47

−0.54

−0.56

−0.58

−0.56

−0.62

−0.72

Comf.

Law enforcement drone

−0.31

−0.36

−0.29

−0.34

−0.40

−0.46

−0.54

OTW

−0.25

−0.30

−0.28

−0.18

−0.27

−0.44

−0.53

RTW

−0.40

−0.28

−0.34

−0.32

−0.42

−0.55

−0.67

Comf.

Search‐and‐rescue drone

Correlations (Pearson's R) between support for regulation and operator (OTW) and regulator (RTW) trustworthiness and comfort by drone (Comf)

OTW

TABLE 6

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ZWICKLE

TABLE 7

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Standardized regression coefficients for models predicting regulation support Complete ban

Temporary ban

Night ban

Private property ban

Hover limit

Video limit

Consent

Most important risk

−0.06

−0.04

−05

−0.12**

−0.07*

−0.12*

−0.07

Amazon DCa

−0.03

−0.004

−0.08

0.08*

Commercial DCa

−0.18***

−0.17***

−0.05

−0.03

−0.08*

−0.07

0.03

Recreational DCa

−0.11**

−0.18***

−0.03

0.01

−0.07

−0.04

−0.02

Search & Rescue DCa

−0.15***

−0.14***

−0.06

−0.11**

−0.04

0.03

−0.02

0.11**

0.20***

0.05

OTW

−0.35***

−0.37***

−0.40***

−0.37*

−0.30***

−0.34***

−0.34***

RTW

−0.28***

−0.14**

−0.04

−0.01

−0.10*

−0.06

−0.04

Gender

0.06*

0.09**

0.12***

Age

0.01

0.07*

0.08*

Race

−0.04

−0.08**

Adjusted R2

0.37***

0.27***

−0.03 0.23***

0.05

0.19***

0.15***

0.13***

−0.06

0.02

−0.01

−0.06

−0.02

0.23

−0.05

−0.04

0.19***

0.19***

0.21***

0.15***

Note. *p < 0.05,*p < 0.01,***p < 0.001. a

Reference group: law enforcement drone.

Those regulations that were most supported could be categorized as limiting one's exposure to an unwanted drone. Across all types of drone, the three regulations that received the highest level of support were a ban on flying drones over private property, a requirement for an operator to obtain consent from anyone whose image was intentionally or unintentionally captured by a drone, and a limit on how long a drone can fly or hover continuously. These regulations correspond with the instances that have generated the most attention from the media and the public: situations where people have felt they were being spied on by a drone operator in an area where they felt secluded. While these privacy concerns are not addressed by the FAA, numerous states have enacted laws mirroring the ones used in this study. Respondents were the most accepting of drones when they were being used for search‐and‐rescue operations, expressing the lowest levels of support for those regulations limiting their use. This suggests that respondents are able to see clear benefits of using drones in emergency situations, and that doing so presents fewer risks than the others applications tested in this study. Overall the public's desire for less regulation in this area is mirrored by current policies, where government personnel performing search‐and‐rescue operations via drone are generally exempt from the warrant requirement imposed by some states. In general, respondents in our study were also supportive of those regulations aimed at regulating private uses of drone technology, both commercial and recreational. Regulations controlling the use of drones to deliver packages received the most support, suggesting that drones used in this capacity are perceived to present greater risk. While this study did not collect data regarding specific risks, we speculate that respondents may be concerned about drones delivering packages directly to one's door or the possible proliferation of drones in residential settings. Whatever the case may be, federal regulators appear to agree, demonstrated by the fact that current regulations do not yet permit cargo delivery by drone. We further discuss our findings in relation to the current regulatory landscape in the following sections.

4.1

|

Privacy and private property

A category of regulation that respondents showed universal support for, regardless of the type of drone, were restrictions on flying over private property. It comes as no surprise that private citizens do not want drones flying over their property and potentially invading their privacy. The FAA has set an altitude restriction for drones which

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requires that drones fly below 400 ft and remain 5 miles from airports and stay out of other restricted areas designated “no‐fly zones.” But when it comes to proximity to real property and people, the FAA simply requires the operator not fly in a careless and reckless manner. This gap in privacy regulation has been the catalyst for many state and local laws restricting drones flying over another person's property and taking pictures without first obtaining consent. Lawmakers across the country have attempted to fill in these legislative gaps created by the dramatic increase in private drone ownership and usage, resulting in a patchwork of regulations that vary by state restricting private drone use in a myriad ways. The primary intention of such laws is to restrict drone operation out of concern for personal privacy. Combating voyeurism is paramount among many states. Restrictions on using a recording device or camera to photograph or film an individual who otherwise would have a reasonable expectation of privacy (e.g., in their home or apartment) are highly common. In Arkansas, for example, video voyeurism has three elements when one is flying a drone surreptitiously and attempting to film or photograph the body of another person where (1) that person has a reasonable expectation of privacy, (2) that person has no knowledge of the drone's presence and did not consent to being filmed/photographed, and (3) that person is in a circumstance under which s/he has a recognized reasonable expectation of privacy (Arkansas H.B. 1349, 2015). Variations of this Act have been introduced or enacted in other states, including Connecticut (An Act Concerning the Use and Regulation of Drones, 2017), Illinois (Illinois H.B. 3906, introduced 2017), Indiana (S.B. 0299 – introduced in 2017), and Texas (S.B. 839 – introduced in 2017). The Texas bill further complicates the issue by naming 22 specific instances in which image capture by drones is permissible. Additionally, legislators have proposed or enacted laws that restrict drones from flying over private property below certain altitudes without an owner's consent. These so‐called ‘airspace trespass’ statutes prohibit drones from flying over private property without prior permission from the landowner. An Oregon law imposes a no‐fly zone of 400 ft above private property without prior consent. Violators will be fined under a trespass theory of liability. Nevada maintains a similar law except with a 250 ft altitude restriction over private property. An Idaho code requires the written consent of a private citizen if one wishes to fly a drone over “an individual or a dwelling owned by an individual and such dwelling's curtilage” (Idaho SB 1134, 2013). Another method of limiting unwanted interactions with drones is to require the pilot to obtain consent before collecting visual data or flying over private property. Our survey results showed that regulations requiring operators to get consent from anyone whose image was recorded, either intentionally or unintentionally, had the second highest levels of support across all drones. To date, only nine states have enacted consent‐based laws such as these in order to address privacy‐related concerns. For example, Florida prohibits private individuals from using drones to record images of persons or property without prior consent. The law grants a cause of action against anyone who, without prior consent, uses a drone to capture images of persons or objects on private property if a reasonable expectation of privacy exists. Numerous other states made it a criminal offense to use drones to capture images of a person engaging in private, personal, or familial activities without permission (e.G. California AB 856, 2015) or look into a dwelling or other building (e.g. Rhode Island HB 7334, 2016). Overall, the subject of privacy represents the largest discrepancy between respondents' desire for regulation and the regulatory and legal structure currently in place. As has been discussed, lawmakers have sought to pass specific restrictions on drone use in an effort to fill some of the legal gaps left open by existing tort laws that may not apply to drones (Farber, 2016). But in spite of all of the state and local privacy laws focused specifically on drones, legal ambiguities still remain regarding what constitutes aerial trespass, reasonable expectation of privacy, and interference with one's use and enjoyment of one's property. Questions regarding whether property owners have a legal right to refuse a drone to fly over their property in the absence of an explicit law are unsettled. Moreover, the practical obstacles for a drone operator to obtain consent from all landowners prior to flight, as required by many regulations, are considerable to say the least. These legal questions have emerged because of the novel ways in which drones allow people to conduct aerial surveillance, and how drones differ from the planes and helicopters for which existing laws and regulations were written.

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4.2

Law enforcement

|

13

Another contentious area highlighted by our survey data is the use of drones by law enforcement. Respondents in our study were most in favor of regulations that limit police discretion when using drones to provide video surveillance. These results have immediate practical importance given both the range of possible applications of drones for law enforcement purposes and the contemporary crisis of trust in police in the US (Jones, 2015). We found the strongest correlations between an individual's support for drone policy and the trustworthiness of the drone pilot, those responsible for regulating its use, and one's overall level of comfort with a drone's continued operation, in the law enforcement drone condition. This means that as trust in the police goes down across the country, we can expect the public to demand more and tighter regulations in the way law enforcement can use drones in their operations. The police use of drones presents an ethical gray area, where mitigating public safety risks (crime) can come at the expense of personal privacy. Absent the emergency situations assumed in the search‐and‐rescue context, concerns are likely to arise about police overreach, invasions of privacy, and perceived unjust monitoring. These concerns are understandable given the absence of judicial oversight by not requiring police to obtain a warrant prior to conducting aerial surveillance. In an effort to increase this amount of judicial oversight, 17 states explicitly require law enforcement to obtain a search warrant before utilizing drones for criminal investigative purposes. At present there are eight additional states considering legislation that would require police to first obtain a warrant before deploying drones. Among these states, some also mandate additional limitations on police with regard to gathering, retaining and disseminating data collected by drones. For example, the Illinois Freedom from Drone Surveillance Act requires that the warrant be limited to a period of 45 days and requires that within 30 days the agency shall destroy all information gathered by the drone unrelated to the target of the investigation. Reflecting respondents' views about using drones for search‐and‐rescue purposes, several states have enacted bills containing language that is primarily intended to restrict the use of drones by law enforcement, while specifically allowing exceptions for emergency search‐and‐rescue operations. For example, a bill in Indiana allows a “law enforcement officer or governmental entity” to utilize drones when they are needed “to conduct a search‐and‐rescue or recovery operation,” or during efforts responding to “a natural disaster or any other disaster.” (Indiana House Enrolled Act No. 1009, 2014) Likewise, a bill in Maine effectively demonstrates both the discretionary nature of the search‐and‐rescue exception and its breadth, stipulating that a law enforcement agency “may use an unmanned aerial vehicle for the purpose of a search‐and‐rescue operation when the law enforcement agency determines that use of an unmanned aerial vehicle is necessary to alleviate an immediate danger to any person or for training exercises related to such uses” (Act To Protect the Privacy of Citizens from Domestic Unmanned Aerial Vehicle Uses, 2015).

4.3

|

Demographic differences

Finally, support for drone regulation differed across various demographic groups, with women primarily demonstrating greater levels of support overall. This mirrors initial findings related to concerns about drones in the U.S. (Lieberman et al., 2014; Miethe et al., 2014) and is consistent with past research regarding the perceptions of emerging risks (Finucane, Slovic, Mertz, Flynn, & Satterfield, 2000; Kahan, Braman, Gastil, Slovic, & Mertz, 2007). The most telling difference in support for regulation was found with regard to law enforcement drones, where lower‐income respondents were significantly more supportive of limits on their use when compared with middle‐income respondents. These results suggest that those in the lower‐income bracket perceive heightened vulnerability to police overreach. Future studies should explore this finding in greater depth to determine if support for law enforcement regulation is directly related to perceptions of risk regarding drone use, as well as a possible explanation for differences in those perceptions. Understanding demographic factors that influence support for drone regulation,

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particularly regulations related to privacy, is important as many such regulations will necessarily be created at the state or local level where demographic differences play a larger role.

4.4

|

Limitations

This research does have important limitations as a result of the method of data collection and the design of the study. First, the results of our study do not allow us to know if respondents support a certain policy as an avenue to mitigate privacy or safety risks, or both. Likewise, it is not possible to know what is driving perceptions of safety and privacy risks. While there are certainly direct and concrete associations, such as the ability for a drone to legally peer into one's backyard, there are probably also more abstract concerns, such as an apprehension for a future where drones are a ubiquitous presence in our skies. Future research should explore the public's risk perception of the slippery slope of allowing drones to carry out a function that, once sanctioned, could result in widespread and potentially invasive use. Finally, the drones and policies in this study were chosen to represent the potential range of applications and regulations, and may not exactly mirror those currently in place.

4.5

|

Conclusion

Drone technology is too nascent to expect courts to have resolved the pressing legal and social questions pertaining to how much privacy we should expect and who we should expect it from. To that end, society should look to regulators to establish rules for responsible operation that allow the associated benefits while addressing the social costs associated with aerial objects equipped with cameras flying overhead. The social costs addressed by regulation should include both those quantified by technical risk assessments and those imposed by fear, anxiety, or concern over the erosion of one's rights (Farber, 2016; Loewenstein et al., 2001). In sum, the current regulatory structure governing the use of drones in the US is largely meeting the needs of the public from a perspective of safety, but the level of legal protection citizens have with regard to privacy will depend on where they live. Emerging technologies typically outpace the laws and regulations governing their use (Macnaghten, Kearnes, & Wynne, 2005; Renn & Roco, 2006) and the drone context is no exception. While respondents' policy support suggested that privacy was a primary concern, existing laws regarding aerial surveillance and trespassing were not written for the current state of technology (Farber, 2014). While the FAA has a strict focus on regulating the safety aspects of integrating drones into the airspace, the state and local responses to privacy concerns are to pass new laws. In those locales without legislation, however, there can be little recourse for individuals who feel their privacy has been violated by the use of a drone. It is evident from our study that the public perceives benefits from the use of drones to perform a variety of functions throughout society. This is evidenced by the low levels of support for a complete ban on their operation. It is also clear that drones are perceived as presenting risks to personal safety, public safety, and privacy. In general, respondents in our study were most supportive of those regulations that sought to mitigate privacy risks and were least supportive of those which restricted the use of drones to mitigate public safety risks, such as in search‐and‐rescue operations. This dichotomy has the deepest implications for law enforcement agencies. Local, state and federal law enforcement seek to ensure public safety, but in doing so they risk intruding on the privacy of those they seek to protect. If law enforcement officials seek to use drones for investigative purposes, they should do so while remaining aware of the perceived risks the public holds regarding invasions of privacy. To better equip both policymakers and law enforcement to deal with this paradox, philosophical, ethical, and legal research should focus how to most effectively walk the line between protection and intrusion. RE FE R ENC ES Act Concerning the Use and Regulation of Drones. (2017). Connecticut ‐ Substitute Bill No. 7260 Section 5. Act to Protect Privacy. (2015). Vermont S.B. 18, General Assembly. 2015–2016 Session.

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Act To Protect the Privacy of Citizens from Domestic Unmanned Aerial Vehicle Uses. (2015). Maine H. B. 25, H.P. 24 – L.D. 25, Sec. 1 25 MRSA Pt. 12 §4501 (4(C)). Aircraft Operations. (2016). Oregon Revised Statute § 837.380. Arkansas H.B. 1349. (2015). Arkansas Code § 5–16‐101(b)(1)–(3). Berinsky, A. J., Huber, G. A., & Lenz, G. S. (2012). Evaluating online labor markets for experimental research: Amazon. com's Mechanical Turk. Political Analysis, 20(3), 351–368. Clothier, R. A., Greer, D. A., Greer, D. G., & Mehta, A. M. (2015). Risk perception and the public acceptance of drones. Risk Analysis, 35(6), 1167–1183. Essex A. (2017, January 24) Taking Off: State of unmanned aircraft systems (drones) policies. National Conference of State Legislatures. Retrieved from: http://www.ncsl.org/research/transportation/taking‐off‐state‐unmanned‐aircraft‐systems‐ policies.aspx. Farber, H. B. (2014). Eyes in the sky: constitutional and regulatory approaches to domestic drone deployment. Syracuse Law Review, 64, 1. Farber, H. B. (2016). Keep out: The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones. Georgia State University Law Review, 33, 359. Farber, H. B., & Nodiff, M. J. (2017). Protecting Homeowners' Privacy Rights in the Age of Drones: The Role of Community Associations. Fordham Urban Law Journal, 44, 623. Federal Aviation Administration. (2015, December 14). FAA Announces Small UAS Registration Rule. Retrieved from: https:// www.faa.gov/news/press_releases/news_story.cfm?newsId=19856. Federal Aviation Administration. (2016, December 21). Drone registration marks first anniversary. Retrieved from: https:// www.faa.gov/news/updates/?newsId=87049. Federal Aviation Administration Modernization and Reform Act of 2012. (2012). 14 C.F.R. Finucane, M. L., Slovic, P., Mertz, C. K., Flynn, J., & Satterfield, T. A. (2000). Gender, race, and perceived risk: The 'white male' effect. Health, risk & society, 2(2), 159–172. Freedom from Unwanted Surveillance Act of. (2013). Florida Senate Bill 92, 115th Congress, Regular Session. Hubbard, L. (2017, January 4). IoT will drive consumer tech industry to $287 billion in revenues, an all‐time high, according to consumer technology association. Consumer Technology Association. Retrieved from https://www.cta.tech/News/ Press‐Releases/2016/January/IoT‐Will‐Drive‐Consumer‐Tech‐Industry‐to‐$287‐Bill.aspx. Hunt, G., & Mehta, M. (2013). Nanotechnology:" Risk, Ethics and Law". Routledge. Indiana House Enrolled Act No. 1009. (2014). §19(9)(b)(1). Jones, J. (2015, June 19) In U.S., Confidence in Police Lowest in 22 Years. Gallup. Retrieved from: http://www.gallup.com/ poll/183704/confidence‐police‐lowestyears.aspx. Kahan, D. M., Braman, D., Gastil, J., Slovic, P., & Mertz, C. (2007). Culture and identity‐protective cognition: Explaining the white‐male effect in risk perception. Journal of Empirical Legal Studies, 4(3), 465–505. Kang, C. (2016, June 21). F.A.A. issues commercial drone rules. New York Times. Retrieved from: http://www.nytimes.com/ 2016/06/22/technology/drone‐rules‐commercial‐use‐faa.html?smprod=nytcore‐ipad&smid=nytcore‐ipad‐share&_r=1 Leitersdorf, Y., Schreiber, O., Reznikov, I. (2016, September 9). The drone race is off and running, with Israel in the lead. TechCrunch. Retrieved from: https://techcrunch.com/2016/09/09/the‐drone‐race‐is‐off‐and‐running‐with‐Israel‐in‐ the‐lead/. Lieberman, J., Miethe, T., Troshynski, E., & Heen, M. (2014). Aerial Drones, Domestic Surveillance, and Public Opinion of Adults in the United States. Retrieved from Center for Crime and Justice Policy: https://www.unlv.edu/sites/default/ files/page_files/27/Research‐AerialDrones‐DomesticSurveillance.pdf Loewenstein, G. F., Weber, E. U., Hsee, C. K., & Welch, N. (2001). Risk as feelings. Psychological Bulletin, 127(2), 267–286. Macnaghten, P., Kearnes, M. B., & Wynne, B. (2005). Nanotechnology, Governance, and Public Deliberation: What Role for the Social Sciences? Science Communication, 27(2), 268–291. https://doi.org/10.1177/1075547005281531 Mayer, R. C., Davis, J. H., & Schoorman, F. D. (1995). An Integrative Model of Organizational Trust. The Academy of Management Review, 20(3), 709–734. Miethe, T., Lieberman, J., Sakiyama, M., & Troshynski, E. (2014). Public Attitudes about Aerial Drone Activities: Results of a National Survey. Retrieved from Center for Crime and Justice Policy: https://www.unlv.edu/sites/default/files/page_ files/27/Research‐PublicAttitudesaboutAerialDroneActivities.pdf Nevada Assembly Bill 239. (2015). 78th Legislature, Regular Session.

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How to cite this article: Zwickle A, Farber HB, Hamm JA. Comparing public concern and support for drone regulation to the current legal framework. Behav Sci Law. 2018;1–16. https://doi.org/10.1002/bsl.2357