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The Brewing Debate Over Domestic Drones


Privacy rights and civil liberties advocates know that businesses and politicians have put America on a path toward the acceptance and normalization of drone use in domestic airspace. And, the concern about increased drone use being inevitable, especially after President Obama signed a law that requires the Federal Aviation Administration (FAA) to “integrate drones into American airspace by 2015,” has spurred necessary discussion because there currently exists no good set of established protections to prevent authorities from abusing their power when using drones for surveillance.

The New York Times has been facilitating an exchange of ideas on the future of drone use in America for the past week. The new FAA law inspired the newspaper to pose this question: “Should the government restrict where drones can fly and film, to protect people’s privacy? Or should we all assume that if we are outdoors or near a window, we have no privacy?”

The paper setup the question by noting the law could mean more and more Americans will now be using drones for “shooting Hollywood films, crop dusting, monitoring weather, spying on neighbors, photographing celebrities,” etc.

Five perspectives addressing the question were published. Each comment seemed to subscribe to the fact that on a micro level drones could be useful and make doing certain tasks and operations easier. Each comment also seemed to attempt to address the larger issue—whether drone proliferation could result in frequent and sometimes massive violations of privacy.

The view put forward by Jim Harper, director of information policy studies at the Cato Institute, is that there should be no “special rule about drones” because it would just create “regulatory and enforcement complexity without increasing privacy protections.” Harper contends “old laws” could be used to protect privacy and there did not need to be any new sets of laws or regulations for use. This view presumes that privacy protections in the United States currently do a good job of protecting privacy, and, if you let the free market loose and allow unlimited production of drones for surveillance or civilian use, profit will not have major influence on the outcome of future lawsuits.

Occupy Wall Street live streamer Tim Pool, who has engineered an “OccuCopter” drone to provide footage of protests, presents the most interesting viewpoint. He says,”Government restriction on drones already exists.” That is why the “OccuCopter” has had to be classified by his team as a “toy.”

The real issue with government restriction is enforcement. Who is controlling the drone and how? How do we hold these people accountable if they violate the restrictions? The dangers of misuse exists in the anonymity of the controller and, in some cases, the artificial intelligence of the drone.

It is imperative, however, that civilians be allowed to use drone technology. This is a crucial counterbalance to our surveillance state, especially because many police departments already use drones. As the saying goes, “Who watches the watchmen?”

Pool’s perspective suggests the drones could be critical to US citizens because they could use them in efforts to oppose abuse or corruption perpetrated by the government. It essentially speaks to those who think drones could be helpful to nonviolent civil resistance movements.

The argument is similar to why citizens support keeping corporations from having too much control over the Internet. The free flow of information can be critical to the ability of a movement to launch actions. It can also be essential to educating and inspiring others to action.

This is why members of government have to manufacture justifications for conducting surveillance of the Internet, which the Homeland Security Department is currently doing. The capacity of technology to fuel movements and provide a check on power can have a significant impact. So, the government cannot simply allow citizens to use the technology without having some way to spy on developing uprisings.

Pool understands the relationship between those who resist and those in power who fear resistance. He argues, “Civilian drone use will be restricted by expensive permits, putting the ability into the hands of those who can afford the liabilities — not the average civilian.” He predicts drones will have to be “registered.” Presumably, the government would know what a citizen was doing with their drone.

If one extends Pool’s prediction, an unregistered drone used by an activist group could lead to legal consequences. The use of a drone without permission might lead to charges of espionage or sedition.

What about a corporation or a government agency? How do we hold people who work for corporations or government agencies accountable if they violate the restrictions? If one agrees use by citizens will inevitably be restricted, does one think corporations or government agencies should then face limits too? The ACLU and Electronic Privacy Information Center (EPIC) are petitioning the FAA to establish rules because they fear currently corporations or government agencies could operate with impunity.

Jameel Jaffer, deputy legal director of the ACLU, writes in his comment published on the Times website:

…[I]t’s crucial that we place clear limits on the use of drones to collect information about citizens. Law enforcement agencies should generally be prohibited from using surveillance drones except to monitor those who are reasonably suspected of engaging in criminal activity. When surveillance will be particularly intrusive – for example, if it will be prolonged, or if it will include peering through a window – the surveillance should be based on a warrant and probable cause. And when the government collects information incidentally about individuals who aren’t suspected of criminal activity, or when criminal suspects turn out to be innocent, the information the government has collected should be discarded.

Or, as Electronic Frontier Foundation staff attorney Jennifer Lynch has said, “Drones give the government and other unmanned aircraft operators a powerful new surveillance tool to gather extensive and intrusive data on Americans’ movements and activities.”

Jaffer and Lynch are both right. There should be no peering into windows without warrants or probable cause. But, isn’t that the expectation Americans have of law enforcement currently? How much does law enforcement heed this expectation? It seems like surveillance is more often conducted illegitimately whether a target is a suspect or not.

The “war on terrorism” has provided a framework for justifying warrantless surveillance. For example, the NYPD is now known to have engaged in ethnic profiling of Muslim communities in the northeastern United States. The ACLU has called for an investigation into surveillance that imposes “a badge of suspicion on all Muslims and has stigmatized communities of individuals based upon their religious affiliations.” Citizens have expressed support for sanctions on the NYPD.

A Muslim mother of a Rutgers student says, “What do I tell her? What do I tell my other children? That you’re going to be watched and you’re going to be videotaped just because you’re Muslim?” If no lawsuit succeeds, if Mayor Michael Bloomberg is going to permit the NYPD to engage in such operations, if Attorney General Eric Holder is going to ignore these revelations, then, yes. Entire groups of people will be fair game. And, the increased use of drones will only increase fears that one is being watched. [Note: There is already evidence to suggest the NYPD is experimenting with drones.]

There are many mechanisms and justifications, which government agencies can use to violate the privacy of Americans without facing consequences. The FISA Amendments Act allows the “government to engage in mass acquisition of U.S. citizens’ and residents’ international communications with virtually no restrictions. The TSA’s employment of body scanners and pat-downs at airports, along with other programs for monitoring and tracking passengers, have become part of a new normal in society. Each day it seems citizens are being trained to accept that they have to live in society with less and less privacy, even though privacy is a constitutional right.

The history of impunity, which corporations and government agencies have enjoyed, suggests in order to move forward and establish restrictions on drone use there needs to be a thorough examination of current laws on surveillance. Thorough reviews of all programs for monitoring and tracking US citizens have to be conducted. Abuses committed in the past decade need to be discussed openly. The courts need to litigate cases involving gross invasions of privacy and law enforcement should not be granted immunity because they supposedly need wide latitude to protect communities from terror “threats.”

Law enforcement agencies are already able to get away with violating the privacy of people in specific communities. These violations are largely acceptable to political leaders from both major political parties. Drones are just another tool to be used by agencies employing these invasive practices.

One can fear a future where one might have to look over their shoulder constantly to see if they or their community is being monitored by some robot flying through the sky, but the truth is that entire groups of Americans already face the threat of constant unwarranted and illegitimate surveillance. Plainclothes undercover cops patrol neighborhoods photographing and taking notes just so databases on communities can be created.

Restrictions on drone use would satisfy privileged and less marginalized groups in America. But, those who have been routinely targeted by law enforcement would inevitably face repeated privacy violations if a revolution in technology does not come with a widely supported campaign to confront and question the regular use of spying by government in the past few decades.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."