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Thursday, March 21, 2013

Privacy regs, congressional catch-up imperative to rein in runaway UAV tech ─ Poe, Leahy, Calo

Drones in America
Editing, re-reporting by 
Carolyn Bennett

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” 

Patrick Leahy
 Senator 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?
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.

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.

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.”


“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.
Remedying what is remiss

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.

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:  
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.

POE: CONGRESS MUST PRESERVE AMERICAN PRIVACY: a bill establishing safeguards to protect Americans from Drone Surveillance”

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. 

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:
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

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

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


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

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

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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