Drones in America
Editing, re-reporting by
Carolyn Bennett
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overnment recklessly remiss in oversight, regulatory
process, rules in a drone problem bigger than drone problem
Senator Patrick Leahy (D-Vt.) yesterday convened a hearing on
“The Future of Drones in America: Law Enforcement and Privacy Considerations”
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| Senator Patrick Leahy |
“While there may be many valuable uses for this new
technology, the use of unmanned aircraft raises serious concerns about the
impact on the constitutional and privacy rights of American citizens. The
Department of Homeland Security, through Customs and Border Protection, already
operates modified, unarmed drones to patrol rural parts of our northern and
southern borders, as well as to support drug interdiction efforts by law
enforcement. In addition, a growing number of local law enforcement agencies
have begun to explore using drones to assist with operational surveillance.
“This raises a number of questions regarding the adequacy of
current privacy laws and the scope of existing Fourth Amendment jurisprudence
regarding aerial surveillance:
When is it appropriate for law
enforcement to use a drone, and for what purposes?
Under what circumstances should law
enforcement be required to first obtain a search warrant, and what should be
done with the data that is collected? And although no drones operating in the U.S.
are yet weaponized, should law enforcement be permitted to equip unmanned
aircraft with non-lethal tools such as tear gas or pepper spray?
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My concerns about the domestic use of drones extend beyond
government and law enforcement,” Sen. Leahy said. “Before we allow widespread
commercial use of drones in the domestic airspace, we need to carefully
consider the impact on the privacy rights of Americans.
Just last week, we were reminded
how one company’s push to gather data on Americans can lead to vast
over-collection and potential privacy violations.
Similarly, a simple scan of amateur
videos on the internet demonstrates how prevalent drone technology is becoming
amongst private citizens.
Small, quiet unmanned aircraft can
easily be built or purchased online for only a few hundred dollars, and
equipped with high-definition video cameras while flying in areas impossible
for manned aircraft to operate without being detected.
“It is not hard to imagine the serious privacy problems that
this type of technology could cause.”
University of Washington School of Law Professor Ryan Calo
was one of the people who had been invited to give testimony at “The Future of
Drones in America: Law Enforcement and Privacy Considerations” hearing.
Professor Calo
“The subject of today’s hearing is drones and law
enforcement [but] I pause to note that, if anything, there are even fewer
limits on the use of drones by individuals, corporations, or the press.
The common law privacy torts such
as intrusion upon seclusion tend to track the constitutional doctrine that
there should be no expectation of privacy in public.
Some might go further and argue
that the press (at least) has a free speech interest in using technology to
cover newsworthy events.
This combination of cheap, powerful
surveillance and inadequate privacy law has understandably resulted in a backlash
against drones, one further compounded by our association of the technology
with the theatre of war.
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| Professor Ryan Calo |
After making that critical aside further down in his
statement, he led with concerns not unlike Sen. Leahy’s on privacy and lax
oversight, monitoring, regulation, rules. “Drones,” Professor Calo said, “have
a lot of people worried about privacy—and for good reason.
Endless apps: “Drones drive down the cost of aerial
surveillance to worrisome levels. Unlike fixed cameras, drones need not rely on
public infrastructure or private partnerships. And they can be equipped not
only with video cameras and microphones, but also the capability to sense heat
patterns, chemical signatures, or the presence of a concealed firearm.”
Endless spying: “American privacy law, meanwhile, places few
limits on aerial surveillance,” he said.
End of privacy: “We enjoy next to no reasonable expectation
of privacy in public,” the professor said, “or from a public vantage like the
nation’s airways.
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The Supreme Court has made it clear through a series of
decisions in the nineteen-eighties that there is no search for Fourth Amendment
purposes if an airplane or helicopter permits officers to peer into your
backyard. I see no reason why these precedents would not extend readily to
drones.”
Stalking
“Drones may … follow people around from place to place,”
Professor Calo said, “even after the recent decision of United States v. Jones.
Jones held that affixing a global
positioning device to a vehicle for the purpose of tracking the location of the
occupant is a search within the meaning of the Fourth Amendment.
But it is far from certain how
Jones would apply to surveillance by a drone, which need not be affixed to
anything.
“Citizens have no reasonable expectation of privacy in
contraband.
Dogs can sniff luggage or cars
without triggering the Fourth Amendment because, courts assume, dogs only alert
in the presence of narcotics or other illegal possessions.
A logical extension of this
precedent, it seems to me, is that drones could fly around looking for unusual
heat patterns or testing the air for drug particles and report back suspicious
activity to law enforcement without ever implicating the Constitution.
Remiss oversight, dated regulatory process a “shame”
“I am very concerned,” Professor Calo said, “that we will
not realize the potential of this technology because we have been so remiss in
addressing the legitimate privacy concerns that attend it. There are several
ways the government could change this picture.
Ideally, we would take the
opportunity to finally drag privacy law into the twenty-first century by
reexamining our outmoded doctrines.
In offering his own remedy to what is remiss, Calo said, “There
is one approach that … could act as stop-gap, and that is for Congress to
instruct the FAA (Federal Aviation Administration) to take privacy into account
as part of its mandate to integrate drones into domestic airspace.
The agency has been largely silent
on the issue of privacy—only recently did members of the privacy community
receive a letter from the FAA asking for input in connection with the selection
of drone testing centers.
“Several federal bills have proposed placing limits on
drones,” he said, but “I think we should be very careful here for a few
reasons.
First, the problem is broader than unmanned aircraft systems: flight is not a
prerequisite for threatening civil liberties. There are robots that climb the
side of buildings, for instance; that would not be covered under the draft
bills I’ve read.
Second, there is likely some
benefit to allowing individual states to adopt different approaches to drones
and seeing what works and what does not.|
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efore yesterday’s Senate hearing, Texas Congressman Ted Poe had
raised concerns about the constitutional
guarantee of right to privacy and related congressional responsibility surrounding
the unmanned aerial vehicle use inside the United States. “As technology
changes,” the congressman said, “Congress has the responsibility to be
proactive and to protect the Fourth Amendment right of all citizens. The Fourth
Amendment states:
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| Congressman Ted Poe |
The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.
“It doesn’t take a constitutional law professor,” Poe said, “to
see why legislation is needed to protect the rights of the American people.
The right of a reasonable
expectation of privacy is a constitutional right.
Any form of snooping or spying,
surveillance or eavesdropping goes against the rights that are outlined in the
Constitution.
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POE: CONGRESS MUST PRESERVE AMERICAN PRIVACY: a bill
establishing safeguards to protect Americans from Drone Surveillance”
excerpt
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| Congresswoman Zoe Lofgren |
WASHINGTON, D.C. – Congressman Ted Poe (TX-02) along with
Congresswoman Zoe Lofgren (CA-19) introduced H.R. 637, the “Preserving American
Privacy Act.” The bill seeks to ensure the privacy of American citizens by
establishing specific guidelines about when and for what purposes law
enforcement agencies and private individuals can use drones.
American Civil Liberties Union
‘Unmanned drones must not become a
perpetual presence in our lives, hovering over us, following us and recording
our every move,” said Chris Calabrese, legislative counsel for the ACLU.
“Strict rules should govern the use of drones by the government. By requiring
that law enforcement secure judicial approval before using drones, this
legislation achieves the right balance for the use of these eyes in the sky.’
Electronic Privacy Information Center
‘Transparency and accountability
are vital to the use of drones in the United States. EPIC has petitioned the
Federal Aviation Administration to protect the privacy rights of individuals
against increased drone use, but the Agency has failed to act. We support
Congressman Poe's efforts to address this problem.’
The “Preserving American Privacy Act”:
Prohibits targeted surveillance of
an individual or their property by law enforcement without a warrant
Mandates transparency during the
permitting process for public accountability
Makes it unlawful for private
individuals or law enforcement officers to use or operate an unmanned aircraft
system that is armed with a firearm (includes explosives) in the national
airspace of the United States.
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Nobody should be spying on another unless they have the
legal authority to do so,” Congressman Poe said. “The decision should not be
left up to unelected bureaucrats to decide the use of drones, so Congress has
the obligation to set guidelines, to secure the right of privacy and to protect
citizens from unlawful drone searches.
Just because the government has the
technology to look into somebody’s yard does not give it the constitutional
right to do so.
Sources and notes
Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate
Judiciary Committee,
Hearing On “The Future of Drones in America: Law Enforcement
and Privacy Considerations”
March 20, 2013, http://www.judiciary.senate.gov/pdf/3-20-13LeahyStatement.pdf
Written Statement of Ryan Calo, Assistant Professor, University
of Washington School Of Law
United States Senate Committee on the Judiciary, “The Future
of Drones in America: Law Enforcement and Privacy Considerations”, March 20,
2013, http://www.judiciary.senate.gov/pdf/3-20-13CaloTestimony.pdf
The hearing by order of the Chairman Witness List Hearing
before the Senate Committee on the Judiciary On “The Future of Drones in
America: Law Enforcement and Privacy Considerations”
Wednesday, March 20, 2013, Dirksen Senate Office Building,
Room 226, 10:30 a.m. Testimony:
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Benjamin Miller, Unmanned
Aircraft Program
Manager, Mesa County
Sheriff’s Office
Representative, Airborne Law
Enforcement Association
Mesa County, CO
Michael Toscano, President and
CEO, Association for Unmanned Vehicle Systems International
Arlington, VA
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Amie Stepanovich
Director of the Domestic
Surveillance Project
Electronic Privacy
Information Center
Washington, D.C.
Ryan Calo, Assistant
Professor (Law)
University of Washington
School of Law
Seattle, WA
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http://www.judiciary.senate.gov/hearings/hearing.cfm?id=d27f2c4073b40a8e678e4a9f6f36acec
Ryan Calo, law professor at the University of Washington;
former director for privacy and robotics at the Stanford Law School Center for
Internet and Society
Statement of Representative Pope: The Library of Congress
Thomas, Congressional Record document, http://thomas.loc.gov/cgi-bin/query/D?r113:1:./temp/~r113715K8q::
POE: CONGRESS MUST PRESERVE AMERICAN PRIVACY: Bill
establishes safeguard to protect Americans from Drone Surveillance
http://poe.house.gov/index.php?option=com_content&view=article&id=8981:poe-congress-mut-preserve-american-privacy&catid=104:press-releases
CONGRESSMAN TED POE
Ted Poe is a U.S. Representative from Texas, elected as a
Republican to the One Hundred Ninth and to the four succeeding Congresses
(January 3, 2005-present). Before entering the Congress, he was a member of the
United States Air Force Reserves (1970-1976), a lawyer and district attorney for
Harris County, Texas (1973-1981), and a judge in Harris County (1981-2003).
Congressman Poe took his academic credentials at the University
of Houston (J.D., Houston, Texas, 1973) and Abilene Christian University (B.A.,
Abilene, Texas, 1970). He was born September 10, 1948, in Temple, Bell County,
Texas. http://bioguide.congress.gov/scripts/biodisplay.pl?index=P000592
SENATOR PATRICK LEAHY
Patrick Joseph Leahy is a U.S. Senator from Vermont, elected
as a Democrat to the United States Senate in 1974; reelected in 1980, 1986,
1992,1998, 2004 and again in 2010 for the term ending January 3, 2017;
president pro tempore (December 17, 2012-); chair, Committee on Agriculture,
Nutrition and Forestry (One Hundredth through One Hundred Third Congresses),
Committee on the Judiciary (One Hundred Seventh Congress [January 3-20, 2001;
June 6, 2001-January 3, 2003], One Hundred Tenth to One Hundred Thirteenth
Congresses).
Before entering the Congress, he was an attorney practicing law
in Burlington and Vermont (State’s) attorney, Chittenden County, Vermont (1966-1974).
Sen. Leahy took his academic credentials at Georgetown University (J.D.,
Washington, D.C., 1964) and St. Michael’s College (Winooski, Vermont, 1961). He
was born March 31, 1940, in Montpelier, Washington County, Vermont. http://bioguide.congress.gov/scripts/biodisplay.pl?index=L000174
CONGRESSWOMAN LOFGREN
Zoe Lofgren is a Representative from California, elected as
a Democrat to the One Hundred Fourth and nine succeeding Congresses (January 3,
1995-present); chair, Committee on Standards of Official Conduct (One Hundred
Eleventh Congress).
Before entering the Congress, she was lawyer in private
practice; on the faculty of Santa Clara University School of Law (Santa Clara,
Calif., 1978-1980); a member of the staff of United States Representative Don
Edwards; executive director of Community Housing Developers; one of the
managers appointed by the House of Representatives in 2009 to conduct the
impeachment proceedings of Samuel B. Kent, judge of the United States District
Court for the Southern District of Texas.
Representative Lofgren took her academic credentials at Santa
Clara University School of Law, (J.D., Santa Clara, 1975) and Stanford
University (B.A. Stanford, Calif., 1970). She was born December 21, 1947, in San Mateo,
San Mateo County, Calif. http://bioguide.congress.gov/scripts/biodisplay.pl?index=L000397
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