Hello Drones, Goodbye Privacy
Eugene K. Chow
A future where unmanned surveillance drones zip through the skies keeping tabs on civilians is no longer relegated to dystopic novels. The panopticon has arrived and privacy rights are in danger.
In less than three months, the Federal Aviation Administration (FAA) will allow law enforcement agencies to operate drones in U.S. airspace, and by 2015, commercial drones will be permitted as well. More troublingly, the ink has hardly dried on the new FAA regulations and Pentagon officials are already pushing to fly the same powerful military drones that track terrorists abroad in the United States.
With these aircraft hovering above our heads, privacy is at risk as drone technology has far outpaced the development of corresponding regulatory laws.
Though the technologies, and concerns thereof, are not new, it is important to keep abreast of the latest developments regarding the domestic use of this invasive agent of surveillance sweeping our county. Bipartisanship tends to be rare, but the fear of the danger to privacy cuts across all political boundaries.
If it concerns you as well please follow past the orange bobble for a large collection of important stories regarding this issue. If you find yourself as concerned as I find myself, add a Rec to elevate these stories to as many eyeballs as is possible. ;)
(Quoted content is a small amount of total stories. Titles are links to further information.)
Cowen Thorne (SaA)
Drones over U.S. get OK by Congress
Look! Up in the sky! Is it a bird? Is it a plane? It’s … a drone, and it’s watching you. That’s what privacy advocates fear from a bill Congress passed this week to make it easier for the government to fly unmanned spy planes in U.S. airspace.
The FAA Reauthorization Act, which President Obama is expected to sign, also orders the Federal Aviation Administration to develop regulations for the testing and licensing of commercial drones by 2015.
Privacy advocates say the measure will lead to widespread use of drones for electronic surveillance by police agencies across the country and eventually by private companies as well.
“There are serious policy questions on the horizon about privacy and surveillance, by both government agencies and commercial entities,” said Steven Aftergood, who heads the Project on Government Secrecy at the Federation of American Scientists.
The Electronic Frontier Foundation also is “concerned about the implications for surveillance by government agencies,” said attorney Jennifer Lynch.
Demanding Answers About Predator Drone Flights in The United States
Customs and Border Protection (CBP) – a division of DHS – uses the unmanned drones inside the U.S. to patrol the borders with surveillance equipment like video cameras, infrared cameras, heat sensors, and radar. But recent news articles as well as a report from DHS itself show CBP is expanding its surveillance work, flying Predator drone missions on behalf of a diverse group of local, state, and federal law enforcement agencies – including a county sheriff’s department in North Dakota, the Texas Rangers, the Bureau of Land Management, and the Department of Defense.
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“We’ve seen bits and pieces of information on CBP’s Predator drones, but Americans deserve the full story,” said EFF Staff Attorney Jennifer Lynch. “Drones are a powerful surveillance tool that can be used to gather extensive data about you and your activities. The public needs to know more about how and why these Predator drones are being used to watch U.S. citizens.”
Drones Over America: What Can They See?
One question about drone usage obviously concerns privacy. In 1986, the Supreme Court ruled that police officers who used a small single-engine airplane to spot hidden marijuana plants in someone's backyard in California did not violate the Fourth Amendment because they were in "public navigable airspace in a physically non-intrusive manner."
"Now if you take that ruling and apply it to a world in which there are hundreds or thousands of drones, that obviously gives rise to some very significant concerns," says Villasenor. "If you interpret that ruling by itself, as things stand today, that would certainly suggest that people would have a fair amount of latitude to make observations using drones."
But several rulings involving what can be observed from outside a property to look inside a property may also apply, says Villasenor. He points to the 2001 case Kyllo v. United States, in which the Supreme Court ruled that the use of a thermal imaging device to monitor heat radiated from inside someone's home without a search warrant violated the Fourth Amendment.
"There's a very interesting piece of language in that ruling that when you map it to drones is really interesting," he says. "[It says] 'Where, as here, the government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search.' One of the interesting phrases in that language is 'not in general public use.' If we fast-forward two or three years from now, when drones are in public use, does that change the legal foundation for what you can and can't observe from the outside of a home that would have been previously unknowable without physical intrusion?"
Homeland Security Wants to More Than Double Its Predator Drone Fleet Inside the US, Despite Safety and Privacy Concerns
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Perhaps worse, DHS is also flying Predator drone missions on behalf of a diverse group of local, state, and federal law enforcement agencies for missions beyond immigration issues. We know they have lent the drones out to the county sheriff's department in North Dakota and the Texas Rangers, among others, but unfortunately, we don’t know the full extent DHS lending program. DHS, as is their custom, is keeping that information secret.
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These drones pose a multitude of privacy concerns to all Americans, as the Congressional Research Service (Congress’ non-partisan research arm) detailed in this comprehensive report on domestic drones and the Fourth Amendment. The report explains drones can be equipped with, among other capabilities, facial recognition technology, fake cell phone towers to intercept phone calls, texts and GPS locations, and in a few years, will even be able to see through walls.
Despite these concerns, DHS has not publicly issued any privacy rules to make sure drones do not spy on US residents in border states going about their daily lives. In fact, at a Congressional hearing on the subject, DHS refused to send anyone to testify, leading both parties to criticize their absence.
This is even more troubling given DHS is also leading the push to get local police agencies to purchase their own drones by handing out $4 million to agencies to “facilitate and accelerate” their use. The FAA estimates as many as 30,000 drones could be flying over US territory by the end of the decade.
Police drones prompt privacy concerns
"Drones should only be used if subject to a powerful framework that regulates their use in order to avoid abuse and invasions of privacy," Chris Calabrese, a legislative counsel for the American Civil Liberties Union, said during a congressional forum in Texas last month.
He argued police should only fly drones over private property if they have a warrant, information collected with drones should be promptly destroyed when it's no longer needed and domestic drones should not carry any weapons.
He argued that drones pose a more serious threat to privacy than helicopters because they are cheaper to use and can hover in the sky for longer periods of time.
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"Both parties cast a skeptical eye toward drone surveillance in law enforcement," Rep. Hank Johnson (D-Ga.) said at the congressional forum in Texas, which was organized by Poe.
Drone Program Aims To 'Accelerate' Use Of Unmanned Aircraft By Police
The Department of Homeland Security has launched a program to "facilitate and accelerate the adoption" of small, unmanned drones by police and other public safety agencies, an effort that an agency official admitted faces "a very big hurdle having to do with privacy."
The $4 million Air-based Technologies Program, which will test and evaluate small, unmanned aircraft systems, is designed to be a "middleman" between drone manufacturers and first-responder agencies "before they jump into the pool," said John Appleby, a manager in the DHS Science and Technology Directorate's division of borders and maritime security.
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"If DHS is going to serve as a Consumer Reports for local authorities that are interested in buying drones and help them figure out which drones perform well and appropriate for their needs, that's great," said Jay Stanley of the American Civil Liberties Union. "At the same time, we do know that DHS institutionally has had a role in pushing local governments to increase their surveillance through grants. I would hope they would not use this program to encourage unnecessary surveillance."
Most people likely wouldn't consider the use of unmanned aircraft to find missing children, locate lost hikers or detect forest fires as "unnecessary" surveillance. But given that fewer than 400 of the nation's 18,000 law enforcement agencies currently have aviation units, the FAA has chosen a go-slow approach with a focus on safety. Initially, law enforcement agencies will be just licensed for training and performance evaluation. Only when a department has shown that it is proficient will it be granted an operational license.
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Once "the bottleneck has passed and every police department does indeed have eyes everywhere, our notions of privacy under the Fourth Amendment and reasonable searches … will need to be reevaluated," wrote University of North Dakota aviation law professor Joseph Vacek in a 2010 law review article, "Big Brother Will Soon Be Watching--Or Will He?" "It seems the state will have the power, both constitutionally and technologically, to continually monitor its citizens from above."
Drone Privacy Bill Would Put In Safeguards On Surveillance
he proposed legislation is the latest measure introduced by lawmakers in both parties who are concerned about the coming proliferation of drones and who want more transparency about the government's use of such devices. The drones, until now mostly limited to military use overseas, will bring airborne video cameras, infrared thermal imagers, radar and wireless network sniffers to American skies. The Federal Aviation Administration (FAA) has estimated that as many as 30,000 drones could be in use domestically by 2020, spurred on by the Department of Homeland Security (DHS) among other government agencies.
To safeguard against abuses, Rep. Ed Markey (D-Mass.), co-chair of the Bipartisan Congressional Privacy Caucus and a longtime member of the House Energy and Commerce Committee, released a draft of the Drone Aircraft Privacy and Transparency Act of 2012 on Wednesday. It is the first drone privacy bill from a Democrat and follows legislation introduced recently by Republicans, including Rep. Ted Poe of Texas and Sen. Rand Paul of Kentucky.
“When it comes to privacy protections for the American people, drones are flying blind,” said Markey in a statement. “Drones are already flying in U.S. airspace – with thousands more to come – but with no privacy protections or transparency measures in place. We are entering a brave new world, and just because a company soon will be able to register a drone license shouldn’t mean that company can turn it into a cash register by selling consumer information. Currently, there are no privacy protections or guidelines and no way for the public to know who is flying drones, where, and why. The time to implement privacy protections is now."
Even The Leaders Of US Police Departments Want To Restrict Domestic Drone Use
Roby said the guidelines represent an "urgent" attempt to redefine the value of aerial drones away from battlefields of Afghanistan, Iraq and Yemen. "It's very important that people understand that we won't be up there with armed predator drones firing away," said Roby, who also is a Baltimore Police Department captain. "Every time you hear someone talking about the use of these vehicles, it's always in the context of a military operation. That's not what we're talking about."
In cases in which a drone is to be used to collect evidence that would likely "intrude upon reasonable expectations of privacy," the IACP's new guidelines recommend that police secure search warrants prior to launching the vehicle.
On the question of arming drones, however, the IACP issued its most emphatic recommendation:
"Equipping the aircraft with weapons of any type is strongly discouraged. Given the current state of the technology, the ability to effectively deploy weapons from a small UA (un-manned aircraft) is doubtful ... (and) public acceptance of airborne use of force is likewise doubtful and could result in unnecessary community resistance to the program."
The American Civil Liberties Union said in a statement that it "applauded" the police group for "issuing recommendations that are quite strong in some areas."
"At the same time, we don't think these recommendations go far enough to ensure true protection of privacy from drones," the ACLU said, adding that privacy protections needed to be enshrined in law "not merely promulgated by the police themselves."
FAA Has Authorized 106 Government ‘Entities’ to Fly Domestic Drones
“We are now on the edge of a new horizon: using unmanned aerial systems within the homeland,” House Homeland Security Oversight Subcommittee Chairman Michael McCaul (R.-Texas) said as he introduced the testimony.
“Currently,” said McCaul, “there are about 200 active Certificates of Authorization issued by the Federal Aviation Administration to over 100 different entities, such as law enforcement departments and academic institutions, to fly drones domestically.”
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“First is privacy as it relates to the collection and use of surveillance data,” Gerald L. Dillingham, GAO’s director of Physical Infrastructure Issues told the House Homeland Subcommittee on Oversight on Thursday.
“Members of Congress, civil liberties organizations and civilians have expressed concerns that the potential increased use of UAS in the national airspace by law enforcement or for commercial purposes has potential privacy implications,” said Dillingham. “Currently, no federal agency has specific statutory responsibility to regulate privacy matters relating to UAS. Stakeholders have told us that by developing guidelines for the appropriate use of UASs ahead of widespread proliferation could in fact preclude abuses of the technology and negative public perceptions of the potential uses that are planned for these aircraft.”
ACLU Blog of Rights: Domestic Drones
U.S. law enforcement is greatly expanding its use of domestic drones for surveillance. Routine aerial surveillance would profoundly change the character of public life in America. Rules must be put in place to ensure that we can enjoy the benefits of this new technology without bringing us closer to a “surveillance society” in which our every move is monitored, tracked, recorded, and scrutinized by the government. Drone manufacturers are also considering offering police the option of arming these remote-controlled aircraft with (nonlethal for now) weapons like rubber bullets, Tasers, and tear gas. Read the ACLU’s full report on domestic drones here.
Congress has ordered the Federal Aviation Administration to change airspace rules to make it much easier for police nationwide to use domestic drones, but the law does not include badly needed privacy protections. The ACLU recommends the following safeguards:
USAGE LIMITS: Drones should be deployed by law enforcement only with a warrant, in an emergency, or when there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific criminal act.
DATA RETENTION: Images should be retained only when there is reasonable suspicion that they contain evidence of a crime or are relevant to an ongoing investigation or trial.
POLICY: Usage policy on domestic drones should be decided by the public’s representatives, not by police departments, and the policies should be clear, written, and open to the public.
ABUSE PREVENTION & ACCOUNTABILITY: Use of domestic drones should be subject to open audits and proper oversight to prevent misuse.
WEAPONS: Domestic drones should not be equipped with lethal or non-lethal weapons.
ACLU Testifies as Congress Takes on Domestic Drones
"Imagine technology similar to the naked body scanners we are all familiar with from airports attached to a drone. Through technologies like face recognition, improved analytics, and wireless internet, it is possible to track specific individuals with multiple drones. Drones and license plate scanning could be used to track cars for traffic enforcement."
Speaking passionately, Rep. Hank Johnson (D-Ga.) said, “We are not a nation of suspects. Warrants must be narrowly tailored to protect against unlawful searches.”
He also expressed concerns over how individuals might “censor their speech and curtail their self-expression when they believe they are being watched by big brother.”
David Leebron, president of Rice University, spoke about the balance between security and privacy. “A surveillance state is incompatible with liberty,” he said, adding that “we choose to not become a surveillance society by finding the appropriate balance between privacy and the needs of law enforcement.”
But who should determine the balance? Congress or the courts?