Privacy SOS

FBI won’t say how it flies drones above the US, probably because people would be horrified if we knew

The FBI has been flying surveillance drones above US airspace for nearly a decade, but the public still has very little idea why, how, with what legal authority, or under what circumstances. Despite a lawsuit by Citizens for Responsibility and Ethics in Washington (CREW), the FBI's 'privacy impact assessments' or PIAs about domestic drone use are still completely secret. MuckRock's Shawn Musgrave reports:

Justice Department agencies may withhold PIAs if publication would “reveal classified, sensitive, or otherwise protected information (e.g., potentially damaging to a national interest, law enforcement effort, or competitive business interest).” The FBI has claimed to both FOIA requesters and members of Congress that it is “not in a position to disclose publicly more detailed information concerning the Bureau’s specific use of UAVs,” and that releasing details regarding its drone inventory, policies or deployment procedures would jeopardize “the effectiveness of this capability in law enforcement and national security matters.”

If an agency chooses to withhold publication, the Justice Department guidelines require that the agency publish a separate justification for keeping PIA findings from the public. In response to the CREW document request, the FBI withheld the assessment in full as well as documents justifying the decision not to post drone privacy reviews online.

The FBI's withholding of documents follows a pattern of obscurity surrounding its drone surveillance operations: the FBI has redacted everything from basic invoice details to congressional correspondence already posted in full online. "Reckless use of drones by the FBI could threaten the constitutional right to privacy of every American, yet we have still not seen documents explaining FBI policies and how they intend to protect privacy rights," CREW wrote in a blog post.

MuckRock has submitted a fresh request for all of the FBI’s privacy impact assessment documents, including the Bureau’s justification for keeping its assessment report offline.

Law enforcement agencies like the FBI frequently try to keep secret even the existence of certain kinds of surveillance technologies, claiming that if we the people knew what these agencies were up to, the effectiveness of the surveillance tools would diminish. That's sort of hard to believe with respect to technologies like cell phone sniffers (so-called 'Stingrays') and drones. After all, most people are not going to stop using cell phones, even if they are involved in illegal activity. And if one wanted to, where would one hide from an FBI drone?

No, this secrecy likely has nothing to do with public safety. The vast majority of the time, governments keep secret information about their surveillance programs not because disclosure would negatively impact public safety, but because transparency would put pressure on agencies to stop doing things the public finds distasteful. The government won't tell us, so we don't know flight patterns or frequencies of FBI drone flights. But I think it's a safe bet to assume that the FBI uses surveillance drones over the United States every single day, in more places than you might expect, and for reasons most people would find anathema.

If history is any lesson, the DOJ is fighting tooth and nail to keep the FBI's drone PIAs secret not because disclosure would harm security, but because the public would be outraged to find out how much the bureau is spying on all of us.

© 2021 ACLU of Massachusetts.