Alumni Q&A: Lisa Ellman, MPP '05

Lisa Ellman, MPP/JD’05, has been named the recipient of the 2015 “Rising Star” award by the University of Chicago Harris School of Public Policy, which recognizes outstanding alumni under the age of 40. Ellman is a Counsel at McKenna Long & Aldridge LLP after having served in senior positions at the White House and the U.S. Department of Justice. For the last several years, she has worked tirelessly to bridge the gap between business innovators and policymakers, including helping to begin to define U.S. policies governing domestic drone use. She recently spoke to Chicago Harris about her work and the complicated considerations around building a domestic drone policy.

What precipitated this recent interest in drones?

Basically, the technology has evolved and improved a lot over the years, and Congress recognized all the benefits that farmers, photographers and other industries could acquire by using them. Congress also realized that many other countries were already using drones domestically, and we need to maintain our nation's competitive advantage. In Japan, 85 percent of crop dusting is done by drones, which is much more efficient and cost effective than conventional methods. Plus, it's usually a lot safer. Not to mention, moviemakers have used drones to film movies abroad for years. It's much less dangerous if a drone falls on a movie set than if a helicopter falls on a set.

So in 2012, Congress mandated in the Federal Aviation Administration [FAA] Reauthorization Act that the federal government integrate drones into the national airspace by 2015. By that time, almost everyone from the White House to the Department of Justice was starting to pay attention—not just the agencies that regulate transportation, but also agencies that were interested in using unmanned aircraft systems [UAS]. Policymakers were interested in discussing the privacy implications, the safety and operational issues, the spectrum issues that concern the Federal Communications Commission, and all the other legal and policy issues associated with integrating UAS into our National Airspace.

Who does the government foresee using drones?

The potential applications for drones are limited only by our collective imagination, and as a society we've only just started to realize the benefits.

Right now, the rules for drones are divided into hobbyist, commercial and public use. So, for example, if I use a drone in the park and take a picture of myself, and it's a particularly wonderful picture that I then post it on Facebook, that's a hobbyist use and totally legal. But, if I want to sell that wonderful photo for 10 dollars because it's just such a great picture, then that’s unauthorized because that’s a commercial use, which a lot of people don't know. Right now, to use drones commercially here in the United States, you need to get individual authorization from the FAA.

For public use, public agencies can use them if they get a certificate of authorization [COA] from the FAA. But, there are gray areas here too. For example, public universities can use drones under a public COA only in very narrow cases, such as if it's a core governmental function, which pretty much means aeronautical research. So a lot of universities want to use drones, but that drone use isn't recreational, and it's not aeronautical research either – so they are treated like commercial entities under the law, which doesn't make a whole lot of sense. They need to get individual authorization from the FAA just like commercial entities do.

The policymaking to govern domestic drone use is happening now. The FAA handles the safety and operational aspects of drone use because they have jurisdiction over the efficiency and safety of the national airspace. However, they also receive tons of questions about privacy, which is not something that they either have jurisdiction over or have the inclination to want to deal with.

Who would have jurisdiction over what then?

The FAA is tasked with keeping the national airspace safe and secure, so they are working on that now. But as I mentioned, privacy is not their domain. In 2013, the White House set up an interagency process to talk about privacy and some of the other issues that had been raised about drone use.

Individual agencies, including DOJ, also began looking at their own use. At that time, in addition to the congressional mandate, there were at least two things that happened that affected DOJ's attention to this issue. First, there was a DOJ Inspector General’s [IG] report that examined the use of drones by the DOJ and by law enforcement agencies, including the Drug Enforcement Agency, U.S. Marshalls, the Federal Bureau of Investigation and the Bureau of Alcohol, Tobacco, Firearms and Explosives. The IG asked if there were already department-wide UAS-specific policies in place, and if not, whether we needed a DOJ-wide policy on the use of drones domestically. At the same time, there was a Government Accountability Office report that examined the federal government uses and policies on UAS. One of the report’s findings was that the government needed to cooperate and have a big conversation about all the issues, including privacy. The Department of Commerce was later tasked with handling the privacy issues for commercial use.

So who is responsible for what types of directives?

The Presidential memorandum that just came out creates operational and reporting limitations on the federal government’s own use of drones, and sets up a multi-stakeholder process to be hosted by the National Telecommunications and Information Administration (NTIA) at the Department of Commerce to discuss similar issues in the context of commercial and private use of UAS. The public is commenting on the scope of that project now, and it will be kicked off formally soon.

The American public has been vocal with its privacy apprehensions associated with the use of domestic drones, and these are understandable. We don't want others spying on us in our backyards. But it is also important to keep in mind we have several generally applicable privacy laws and rules already in place that cover UAS use, as well as trespass and nuisance laws. Public safety institutions have to abide by the Fourth Amendment, which prohibits unreasonable search and seizures. So then the question is, are there gaps where drones provide unique privacy concerns and if so, how do we fill them? That will be the conversation that happens. If you look at the federal government's use of UAS and its limitations on its own usage, it’s a good indication of where the federal government thought the rules needed some reinforcement with regard to its own use of drones. That process will be helpful to build the public's trust surrounding the commercial use of drones.

Do you mean that the commercial sector should consider voluntary best practices for privacy?

The privacy rules will at least need to start as voluntary best practices. We simply don't have a lot of data on UAS because it hasn't ever been legal. Sure, we have hobbyists who have flown UAS for decades, but not in the way that the commercial companies are envisioning. So we just don't have a lot of data. This will be an iterative process and it makes sense to come up with some kind of code of conduct or voluntary best practices and then go from there.

When do you see rules and regulation being put into place?

The FAA issued a Notice of Proposed Rulemaking on February 15, and this was a very positive step. But the proposed rule won't be final for another year or two. And, while it is much more pro-innovation than some of industry had feared it would be, the proposed rule doesn't allow for many of the uses that industry's eager to do. For precision agriculture, package delivery, and pipeline inspection, for example, allowing beyond line of sight operation is critical. The FAA has not shut down the idea of beyond line of sight, but the first iteration of the rule does not allow for it. The agency is waiting for the technology to improve, for collision avoidance software for example to become more trustworthy as the eyes and ears for a drone. Airplanes can "see and avoid" other aircraft, but drones need the capability to "sense and avoid." Safety is the top priority and that's why we need rules in place.

We are going to see drones used for everything from precision agriculture to industrial safety to business security to insurance…the list of potential uses goes on and on. The benefits will be significant, but everyone realizes we really do need rules in place for all of that.

There was a Washington Post series that discusses near misses with planes and drones in the wrong airspace. The FAA admits that it has no way of enforcing the rules that have already been made.

Enforcement is a problem. Those people who are flying them close to airplanes, that’s completely illegal and its recklessly endangering the public. The FAA started this whole knowbeforeyoufly.org education campaign, and this is good. The FAA simply doesn't have the resources to police all of the unauthorized activity that is happening out there. The FAA has recently issued new guidance on enforcement, because most of the time, local law enforcement agencies are the eyes and ears on the ground, and they're the ones in the position to actually help with these kinds of things. So educating local law enforcement, reissuing guidance on what the enforcement capabilities are—both civil and potentially criminal—that’s what policymakers are working on.

What part have you played in the policies that are now under development?

From 2011-2013, I worked to promote open government and innovation issues at the White House. In 2013, DOJ asked me to run a newly-formed working group examining domestic drone policies. We were to consider whether department-wide UAS-specific policies were necessary. If so, did we have them? If not, did we need them? And if so, can we write them? The Attorney General has stated publicly that he believes that DOJ needs a UAS-specific policy.

I also represented DOJ on the federal interagency working group and so helped draft the Presidential memorandum mentioned earlier, which lays out privacy, transparency and accountability protections on the federal government's own domestic use of drones, and establishes the NTIA multi-stakeholder process that will consider similar issues in the commercial drones context.

You coined the term “polivation?” Policy +Innovation?

One of the hardest jobs I had was being the open government policy person at the White House. My job was to promote open government across the administration. On day one of the administration, the president issued two policy memorandums specifically for open government, so the political support for the initiative was there, but the actual government-wide implementation was tough. You have a lot of career employees, all of whom are working very hard, but they're just used to a specific thing and if there is a change in the status quo, it can be difficult to implement.

I think I probably thought of the word “polivation” around that time because I believe that policymaking should promote innovation—and innovators need to work hand-in-hand with policymakers. My job was to convince agencies that open government was in their best interest and would help them achieve their goals. As a general matter, it is difficult to get federal agencies on board with new innovations, even if the initiatives are clearly supported by the president and beneficial to the American public. So I understand the frustration often voiced in the innovator community that policymaking can be bureaucratic and slow.

In my experience, many of the best ideas for government come from outside of government. Innovators need to find their champions within government, and champions within government need to learn from innovators outside. For example when I was at the White House, we would do hack-a-thons to get ideas from the entrepreneur community, to get ideas from people who are technology experts, on how we can be doing things better. We'd bring them to the White House and we would end up with many good ideas. In the beginning, people on both sides wondered—why would I participate in something like this? And then they began to understand that bringing everyone together all in one room benefits all parties. This is "polivation" in action.