Privacy SOS

Terror Tuesday: Accelerating the use of drones at home

That’s what the Senate Armed Services Committee wants to do. In a June 4, 2012 report on the 2013 Defense Authorization Bill, it is pulling out the stops. 

"UAVs [Unmanned Aerial Vehicles] have clearly demonstrated their immense value to DOD military capabilities in the global war on terrorism,” the Committee states.  “Increasingly, UAVs are contributing to missions of other agencies and departments within the United States. Large numbers of UASs now deployed overseas may be returned to the United States as the conflict in Afghanistan and operations elsewhere wind down in coming years, and new UASs are under development. Without the ability to operate freely and routinely in the NAS [National Airspace System], UAS development and training–and ultimately operational capabilities–will be severely impacted…. While progress has been made in the last 5 years, the pace of development must be accelerated; greater cross-agency collaboration and resource sharing will  contribute to that objective."

In preparation for the day when drones fly “freely and routinely,” the Air Force is cobbling together a policy directive on the collection by UAVs of information on ‘US persons’ who come under their gaze. 

UAV operations, exercise and training missions will not conduct nonconsensual surveillance on specifically identified US persons, unless expressly approved by the Secretary of Defense, consistent with US law and regulations. Civil law enforcement agencies, such as the US Customs and Border Patrol (CBP), Federal Bureau of Investigation (FBI) US Immigration and Customs Enforcement (ICE) and the Coast Guard, will control such data collected.” 

And will keep it for a period of not to exceed 90 days in order to see if it can be permanently retained.

Wrap your mind around this for a minute. The Air Force seems to think some drone surveillance can be “consensual” – hey, you up there, I give you permission to conduct a search!

And not only that. The Fourth Amendment’s warrant requirement seems to have entirely slipped its mind.

With drones expected to reap some $89 billion over the next decade – while homeland security spending is projected to top $113 billion over the next three years – it is not hard to see why the Constitution is consigned to the back burner. In our rapidly evolving plutocracy, there’s something for everyone in this new gold rush – the 40 or so major drone manufacturers with the markets of the world at their feet, the Members of Congress they lobby, the universities which see in UAV technology the chance to be high tech players, the police departments that anticipate providing a home for some of the Pentagon’s 7,000 drones, the federal and state agencies that wage “a tripartite war on ‘illegals,’ drugs and terrorism.”

The losers – again — are the ordinary people: you and me. 

While 76 percent of Americans approve of using drones to target and kill terrorist suspects in Obama’s wars, some 52 percent are not in favor of UAVs being used to conduct domestic surveillance, according to a Rasmussen poll last February. 

But a recent Monmouth University poll showed that Americans are happy using drones to police borders, track down criminals and do search and rescue missions. However, they draw the line at catching speeders, while four out of five voiced privacy concerns if law-enforcement officers used drones with high tech cameras. 

So now that there are drone launch sites in at least twenty states, how is Congress reacting to those privacy concerns?

In the opening weeks of June, two Members –  Rep. Austin Scott (R-GA) and Senator Rand Paul (R-KY) – have filed companion bills entitled Preserving Freedom from Unwarranted Surveillance Act of 2012. The bills require that drones are not used “to gather evidence or other information pertaining to criminal conduct” except if a warrant is issued, or except in cases of border patrol, “exigent circumstances” (to prevent imminent danger to life or property) or a “high risk” terrorist attack. 

What if information is collected without a warrant?  “Any aggrieved party may in a civil action obtain all appropriate relief to prevent or remedy a violation of this Act.” The bills also state that no evidence wrongfully obtained can be used in a criminal prosecution. 

The fact that neither bill has any co-sponsors either suggests broad indifference in Congress or a somewhat elusive strategy on the part of its sponsors. The bills represent, in Professor Gregory McNeal’s words,  “a very modest starting point” which will “still engender substantial resistance from the law enforcement community.”

But just maybe the Constitution will twitch into life. Here is how Senator Paul described his motivation for getting a drone bill passed:

Well, you know, I got the idea from Representative Austin Scott. So I have to give him some credit from Georgia….Yeah, I'm a big fan of the Fourth Amendment. Not only do I like the Second Amendment, I like the Fourth Amendment. I think you should have to have a warrant to invade people's privacy and to spy on them. And so I think it's very important. And this just basically restates the Constitution. But sometimes you have to restate the Constitution because many up here seem so ignore it. And Representative Scott when he told me about the bill he said, 'Look, when I'm out hunting on my property, I don't want them spying on me.' And I'm not a hunter. But when I'm separating out my recyclables, I don't want them having a drone to make sure I'm putting my newspaper in the proper bin.

What are the chances that privacy while recycling and hunting will trump profit and the gathering police state? 

Read about the nightmare drone scenario and how one Congressmember is trying to draw a line in the sand at weaponized drones above US airspace.

© 2021 ACLU of Massachusetts.