Over the past few years, there has been a growing recognition that commercial secrecy can have significant impact on the public’s interest in knowing what private industry, and increasingly government, is doing. From the health effects of “pink slime” in beef products to the operation of voting machines, the demands of commercial secrecy has prevented the public from receiving critical information, held by both governments and the private sector, to assure that private behavior is not damaging the public’s interest. We’ve seen the impact of procedural bottlenecks inside government when a culture of excessive secrecy meets vast computing power in the fallout over the NSA’s spying on Internet communications. The next frontier of this battle for information are drones and aerial robotics as an unprecedented dual-use technology. As regulators craft rules to govern the civilian use of such technology, our ability to have an intelligent discussion about the contours of that use could be hampered by undue and unnecessary secrecy. Moreover, regulators face this challenge with a severe experiential deficit, as we’ve not encountered a technology that can have identical uses for Dominos Pizza and the US Air Force and be purchased by anyone on Amazon.com for a few hundred dollars. Therefore, there needs to a discussion of what regulators and the public at large need to know, would like to know, and shouldn’t know because of commercial concerns. This panel will explore the challenges and parameters of addressing commercial secrecy while simultaneously assuring that this new technology is not ignorantly integrated into our private lives. Among the questions that will be discussed:
- What kinds of commercial information should be made available to the public?
- What commercial information should be shared with the Federal Aviation
- Administration and related state and federal regulators?
- What commercial information can properly be kept from the public and/or regulators?
- When should such commercial information be shared with regulators and/or the public?
- What principles should guide policymakers when deciding whether to disclose commercial information held by regulators to the public?
- Should any stakeholders have “preferred access” to commercial information (akin to the United States Trade Representative’s Industry Trade Advisory Councils)?
The goal out of this panel is to sketch broad principles and benchmarks for best practices in the handling of commercial secrecy issues that have and will continue to arise as drone technology becomes more pervasive and powerful.
Elon University School of Law
University of Maryland