Privacy SOS

This briefing paper was written by ACLU of Massachusetts intern Max Bauer

“[O]ur country has taken singular pride in the democratic ideals enshrined in its Constitution… It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile.”– Chief Justice Earl Warren [1]

“[O]ur Forefather Benjamin Franklin warned against such a temptation by opining that those ‘who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.’” [2]

“Preserving our freedom is one of the main reasons that we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people.” – U.S. Senator Russ Feingold, soon after the September 11, 2001 terrorist attacks [3]


Unmanned aerial vehicles, commonly known as drones, are an emerging and rapidly-expanding development in domestic surveillance technology. [4] On Valentine’s Day 2012, President Barack Obama signed the FAA Modernization and Reform Act of 2012, legislation authorizing the Federal Aviation Administration (FAA) to develop regulations to facilitate the growing usage of drones in domestic airspace. [5]

Drones are best known for their use in military operations [6] including the use of weaponized drones for targeted killing. But drones have been used for domestic surveillance purposes for years [7] and their usage is expected to grow exponentially[8]

The FAA has issued 1,428 drone operator permits since 2007 (as of mid-February) and predicts there will be 10,000 drones deployed within the next five years. [9] A public information request by the Electronic Frontier Foundation showed that numerous universities and law enforcement agencies have been approved to use drones by the FAA. [10]

Of course, the widespread use of drones for domestic surveillance raises serious privacy concerns[11]

Drones can be outfitted with high definition [12] and infrared cameras[13] and even license plate readers[14] Drones “present unique threats to privacy,” in the words of one privacy advocate[15] Why? They are smaller – potentially insect-sized[16] can fly longer – perhaps soon in perpetuity[17] and are not bound by the historical, practical check on law enforcement excesses we've had as a result of limited police resources[18]

In a seminal 1890 law review article aptly-titled The Right to Privacy, future Supreme Court Justice Louis Brandeis recognized that “instantaneous photographs… have invaded the secret precincts of private and domestic life…Of the desirability – indeed of the necessity – of some such protection there can, it is believed, be no doubt.” [19] Brandeis and his co-author Samuel Warren were ahead of their time when they wrote that article but even they couldn’t foresee anything like the domestic surveillance schemes that have arisen over a century later.

Drone Use in Massachusetts and Response to Boston Marathon Bombings

Late in 2012, the Boston Globe reported that a SWAT team in Massachusetts had filed an application with the FAA for a drone. [20] As of April 2013, there were no police drones yet in Massachusetts but Waltham-based defense contractor Raytheon was flying many of them in testing capacities. [21] Surveillance and war contracting companies hope to expand their market from military to domestic law enforcement. [22]

Following the explosion of two bombs at the 2013 Boston Marathon, parts of the city shut down as the search for a suspect continued, prompting Ron Paul to write: “This unprecedented move should frighten us as much or more than the attack itself.” [23] Boston Police Commissioner Ed Davis told the public shortly afterward that he seeks more surveillance cameras (there are already hundreds) in downtown Boston. [24] And further, he said, he wants to have drone surveillance for next year’s marathon. [25]

Responses to Drone Programs

While the acceleration of local law enforcement to military-style operations may be inevitable[26] legislative and public opposition to drone proliferation can be successful. Already, efforts to restrict drone surveillance powers have been successful in multiple state legislatures. And communities have rebelled against the technology.

Earlier this year in Seattle, public pressure caused the Seattle Police Department to cancel its drone program. [27] Around the same time, Charlottesville, Virginia passed a law banning any use of drones by its municipal agencies, becoming the first city in the country to pass anti-drone legislation. [28]

More recently, the governor of Florida signed a drone-regulation bill, endorsed by both Republicans and the ACLU, which requires a judge to approve most drone surveillance operations (with an imminent danger exception). [29] A bill pending in Massachusetts provides similar protections. [30]

The federal government also has opportunities to act on drone privacy.

In Congress, several bills have been introduced to reign in domestic drone usage. The Preserving Freedom from Unwarranted Surveillance Act of 2013 requires a probable-cause warrant for drone surveillance, with some exceptions. [31] (Senator Rand Paul filed similar legislation during the previous session but has not re-introduced it.)

Another bill, the Preserving American Privacy Act of 2013, prohibits domestic drones except with warrants, or for border searches or emergencies. The bill also requires government entities to file a detailed data collection statements about their drone surveillance. [32]

Then there's the Drone Aircraft Privacy and Transparency Act of 2013, which would amend the FAA Modernization and Reform Act of 2012, requiring a study of privacy concerns, a data collection statement for each drone operation, including a data minimization statement, and enforcement mechanisms including license revocation for violators of these requirements. [33] But some close observers, including Peter Singer of the Brookings Institution, criticize proposals that would involve the FAA in drone regulation because they argue that its priority is safety, not privacy. [34] Justice Sandra Day O’Connor had recognized this problem in a concurring opinion on aerial surveillance back in 1989. [35]

All of the above bills originate in the House, but the Senate hasn't remained silent on the issue. The Senate Judiciary Committee held a hearing in March to address the rise of domestic drones. [36]

Amidst all the discussion of how to limit government-operated drone use, there has been little conversation about the tricky prospect of regulating drones for personal civilian use. The FAA does very little to regulate private, non-commercial drone use[37] a business which could grow quickly, and a hobby which could be co-opted by the government to skirt drone privacy rules directed at police and intelligence agencies.

Cost-Benefit Analysis

The biometrics industry is expected to be worth $10 billion within the next five years. [38] Biometric identification systems are already widely used by law enforcement [39] and are augmenting drone surveillance capabilities[40] But not only is biometrics technology invasive, it is also notoriously unreliable[41]

A 2010 report released by the National Research Council noted the high risk of false positives and concluded that all biometric recognition technologies are “inherently fallible.” [42] A professor receiving federal government funding for biometric research, including motion pattern recognition, conceded “we should be worried” of this “Big Brother” but asserted “[w]e just have to get used to it, that we’re less private citizens.” [43]

Beyond its technological flaws, surveillance technology is exorbitantly expensive given its remarkable ineffectiveness. A bipartisan Senate committee report concluded the fusion centers around the country, implemented to conglomerate federal and local law enforcement resources to fight terrorism, [44] do not provide useful intelligence[45] In the words of Senator Tom Coburn, “Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties.” [46]

Even without the presence of drones, the sprawling dimensions of the surveillance state are vastly unprecedented. Research by John Mueller and Mark G. Stewart noted in 2012 that homeland security expenditures have exceeded $1 trillion since the September 11 attacks. [47]

John Rizzo, the man who approved much of the government’s operations to fight the so-called War on Terror as the top lawyer at the Central Intelligence Agency (CIA) in the first nine years after the September 11th attacks, and who spent thirty-four years in the CIA total, said: the “cumulative number” of covert operations during the cold war “pales in comparison to the number of programs, number of activities the CIA was asked to carry out in the aftermath of 9/11 in the counterterrorism area.” [48]

According to a 2010 report by the Washington Post, every day the National Security Agency intercepts 1.7 billion emails and other communications. [49]

But despite all the costly data surveillance and sharing, events like the Boston Marathon bombing are still likely to occur. [50] Following the 2010 attempted Times Square bombing, one security expert wrote: “Cameras won’t help. They don’t prevent terrorist attacks, and their forensic value after the fact is minimal.” [51]

In contrast to vast sums of money being spent on prevention, the actual likelihood of a terrorist attack is exceedingly small[52] Followers of American counterterrorism policy have observed that the United States has overreacted[53]

Constant drone surveillance could be the next symptom of this panic.

Finally, Orwellian measures have the potential to exacerbate the security problem by provoking resentment against the government. [54] Drone use overseas has been demonstrated to produce dangerous blowback that threatens the national security of the country, with effects that could last for decades. [55] There is evidence that the worst-case scenario is already happening: in the process of trying to fight terrorism, the government can exacerbate the terrorism problem by creating new enemies.


History shows that our response to threats to our physical safety mustn't involve programs or policies that diminish our core rights. Two centuries ago, during a time of great national insecurity, the War of 1812, the Constitution’s primary author, President James Madison, took virtually no steps to diminish civil liberties. Madison's approach did not lead to the nation’s demise. [56]

With the rise of domestic drones as a cherry on top of an already sprawling surveillance state, America is headed in the opposite direction. But there is time yet to ensure the technology doesn't trample all over our rights.

If mass drone surveillance is inescapable, warrant and data collection reporting requirements will provide a critical check against government abuses. Justice Brandeis has written, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” [57]

Domestic drones can monitor individuals almost constantly; it’s therefore essential to have sunlight shine upon their operators, to monitor their actions. The publicity necessary to hold their operations accountable to the public requires transparency and accountability. [58]

Drone usage will continue to expand and may not stop even at infrared camera surveillance and biometric data acquisition. The Guardian’s Glenn Greenwald has cautioned that although domestic drones may currently be limited to those outfitted only with surveillance equipment, given the increasing militarization of domestic law enforcement, the time may come soon when domestic drones are weaponized. [59]

But even short of that futuristic nightmare, drone surveillance already poses a new threat to liberty at home. As our Fourth Amendment search protection diminishes with the progress of technology[60] legislative initiatives and public outcry may be the only way to protect the right to privacy in the age of domestic drones.

You can learn about the ACLU of Massachusetts' efforts to regulate drones and other cutting edge technologies here.

[1]United States v. Robel, 389 U.S. 258, 264 (1967).

[2]Tobey v. Jones, 706 F.3d 379, 393 (4th Cir. 2013).

[3]Speech to the U.S. Senate, Oct. 25, 2001 (quoted in Bill Moyers’ Journal, PBS, Dec. 5, 2008,

[4]See generally, Richard M. Thompson II, Domestic Drone Surveillence Operations: Fourth Amendment Implications and Legislative Responses, Cong. Research Serv. (Apr. 3, 2013), available at; Norman Reimer, The Droning of America: Here, There and Everywhere, 37-Feb Champion 9 (Jan./Feb. 2013); Benjamin Kapnik, Unmanned but Accelerating: Navigating the Regulatory and Privacy Challenges of Introducing Unmanned Aircraft into the National Airspace System, 77 J. Air L. & Com. 439, 442-49 (2012).

[5]FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §332, 126 Stat. 11, 74; see FAA, Fact Sheet – Unmanned Aircraft Systems (UAS), Feb. 9, 2013, Unmanned aircraft system encompasses the aerial vehicle as well as the digital network and human operator(s).

[6]See Steve Coll, Our Drone Delusion, New Yorker, May 6, 2013,; Spencer Ackerman, Welcome to the Era of Big Drone Data, Wired, Danger Room (Apr. 25, 2013),; Sen. Judiciary Comm. hearing, Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing, Apr. 23, 2013,; Josh Meyer, CIA Expands Use of Drones in Terror War, L.A. Times, Jan. 29, 2006,; Jack M. Beard, Law and War in the Virtual Era, 103 Am. J. Int'l L. 409 (2009) (drone use in global War on Terror goes back over a decade).

[7]See, Peter Finn, Domestic use of aerial drones by law enforcement likely to prompt privacy debate, Wash. Post. Jan. 23, 2011,; Larry Copeland, Police turn to drones for domestic surveillance, USA Today, Jan. 14, 2011,, Ed Lavandera, Drones silently patrol U.S. borders, CNN (Mar. 12, 2010, 7:30 PM EST),; see generally,Paul McBride, Beyond Orwell: The Application of Unmanned Aircraft Systems in Domestic Surveillance Operations, 74 J. Air L. & Com. 627, 628-634 (2009).

[8]See Ben Stone, ACLU of Iowa, Preparing for the Attack of the Domestic Drones, Mar. 18, 2013; Editorial, The Dawning of Domestic Drones, N.Y. Times, Dec. 25, 2012,

[9]SeeBrian Bennett & Joel Rubin, Drones are taking to the skies in the U.S., L.A. Times, Feb. 15, 2013

[10]See Jennifer Lynch, FAA Releases Lists of Drone Certificates—Many Questions Left UnansweredEFF, Apr. 19, 2012,; see Andy Pasztor & John Emschwiller, Drone Use Takes Off on the Home Front, Wall St. J., Apr. 21, 2012,

[11]See, e.g., Carrie Kahn, It's A Bird! It's A Plane! It's A Drone!Nat’l Pub. Radio(Mar. 14, 2011 3:55 PM),, The drone over your backyard: A guide, The Week, June 8, 2012,; Robert Stanton, Texas civil libertarians have eye on police drones, Hous. Chron., Oct. 31, 2011,

[12]See US Army unveils 1.8 gigapixel camera helicopter drone, BBC, (December 29, 2011 6:11p.m.),

[13]See Draganflyer X6, Thermal Infrared Camera,

[14]See 9 ACLU Seeks Details on Automatic License Plate Readers in Massive Nationwide Request, ACLU (July 31, 2012),; Customs and Border Protection Today,Unmanned Aerial Vehicles Support Border Security (July/Aug. 2004),

[15]Using Unmanned Aircraft Systems Within the Homeland: Security Game Changers? Hearing Before Subcomm. On Oversight, Investigations, and Management of H. Comm. on Homeland Sec., 112th Cong. 3 (2012) (statement of Amie Stepanovich, Counsel. Electronic Privacy Information Center (EPIC)).

[16]Mosquito-like drone at Harvard could be used to pollinate, spy on you in the shower, Privacy Matters blog (May 2, 2013, 16:17),

[17]See Mark Brown, Lockheed uses ground-based laser to recharge drone mid-flight, Wired, July 12, 2012,

[18]See Thompson, supra note 4, at 16.

[19]4 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195, 196 (1890).

[20]Scott Kirsner,Drones may soon buzz through local skies,Bos. Globe, Oct. 21, 2012,

[21]No police drones in MA yet, but Raytheon is flying a bunch of them, Privacy Matters blog (Apr. 22, 2013, 11:47),

[22]See Drones: Eyes in the Sky, CBS News (Feb. 10, 2013, 9:20 AM), (“Now, drones are headed off the battlefield. They're already coming your way. AeroVironment, the California company that sells the military something like 85 percent of its fleet, is marketing them now to public safety agencies.”).

[23]Sabrina Siddiqui, Ron Paul Shutdown After Boston Bombings More Frightening Than Attack Itself, Huffington Post (Apr. 29, 2013, 2:35 PM EDT),

[24]Terry Atlas & Greg Stohr, Surveillance Cameras Sought by Cities After Boston Bombs, Bloomberg, Apr. 29, 2013,

[25]Boston police chief wants drones for next year’s marathon, RT (Apr. 26, 2013, 16:57),

[26]See, e..g., Radley Balko, ACLU Launches Nationwide Police Militarization Investigation, Huffington Post (Mar. 22, 2013, 12:31 PM EDT),; Arthur Rizer & Joseph Hartman, How the War on Terror Has Militarized the Police, Atlantic, Nov. 7, 2011,

[27]Seattle cancels police drone program after outcry over privacy issues, NBC News (Feb. 8, 2013, 6:39 PM EST),

[28]Jason Koebler, City in Virginia Becomes First to Pass Anti-Drone Legislation, US News, Feb. 5, 2013,

[29]Joe Sutton & Catherine E. Shoiche, Florida Gov. Rick Scott signs law restricting drones, CNN (Apr. 26, 2013, 5:42 AM EDT),

[30]An Act to regulate the use of unmanned aerial vehicles, Bill S.1664, available at (inserting G.L. c. 272, § 99C); see ACLU, The Drone Privacy Act, (last visited May 3, 2013).

[31]H.R. 972, 113th Cong. (1st Sess. 2013).

[32]H.R. 637, 113th Cong. (1st Sess. 2013)

[33]H.R. 1262, 113th Cong. (2d Sess. 2013); see Dave Uberti, Drone makers struggle for acceptanceBos. Globe, Apr. 6, 2013, (“Lawmakers, meanwhile, including Representative Edward Markey of Massachusetts, a candidate for Senate, are introducing legislation to limit how drones can be used by law enforcement, firefighters, farmers, the media, and others in American skies.”).

[34]See Ryan Delaney, Seeking A 'Field Of Dreams' For A Rising Drone Industry, Nat’l Pub. Radio (Feb. 26, 2013, 3:25 AM),

[35]Florida v. Riley, 488 U.S. 445, 452 (1989) (O’Connor, J., concurring) (“In my view, the plurality's approach rests the scope of Fourth Amendment protection too heavily on compliance with FAA regulations whose purpose is to promote air safety, not to protect [the right Fourth Amendment right to be free from unreasonable searches]”)

[36]The Future of Drones in America: Law Enforcement and Privacy Considerations, Sen. Judiciary Comm., Mar. 30, 2013,

[37]See Rosa Brooks, A Drone of One’s Own, Foreign Policy, Mar. 21, 2013,

[38]Smart Metric, press release, Global Fingerprint Biometrics Market: $US10 Billion Industry by 2018, Yahoo! Finance (Apr. 11, 2013 11:31 AM EDT),

[39]Industry: biometrics business valued at $10 billion by 2018, Privacy Matters Blog (Apr. 16, 2013, 15:28),

[40]See Thom Shanker, To Track Militants, U.S. Has System That Never Forgets a Face, N.Y. Times, July 14, 2011,

[41]See R. Bolle, Guide to Biometrics 81 (2004) (noting facial recognition has inherently high false positive rate).

[42]Dan Vergano, Report questions biometric technologies in fighting crime, USA Today, Sept. 27, 2010,

[43]Christopher Bregler, Prof., N.Y.U., interviewed in On The Media, The Future of Surveillence, Apr. 26, 2013,

[44]6 U.S.C. § 124h(a). (“The Secretary [of Homeland Security] …shall establish a Department of Homeland Security State, Local, and Regional Fusion Center Initiative to establish partnerships with State, local, and regional fusion centers.”)

[45]See Azmat Khan, Senate Report: Massive Post-9/11 Surveillance Apparatus A “Waste”, PBS Frontline (Oct.3, 2012, 6:08 PM ET),

[46]Investigative Report Criticizes Counterterrorism Reporting, Waste at State & Local Intelligence Fusion Centers, Homeland Sec. & Gov. Affairs Permanent Subcomm. on Investigations, Oct. 3, 2012,; see Nancy Murray & Sarah Wunsch,Civil Liberties in Times of Crisis: Lessons from History, 87 Mass. L. Rev. 72, 83 (2002) (warning against sacrificing liberty for security).

[47]The Terrorism Delusion, 37 International Security 81, 103 (Summer 2012), available at

[48]Dana Priest & William Arkin, Top Secret America 12 (2011).

[49]Dana Priest & William Arkin, A hidden world, growing beyond control, Wash. Post. (July 19, 2010 4:50 PM),

[50]See Michael Kranish, et al., Data-sharing troubles raise questions in Marathon case, Bos. Globe, Apr. 25, 2013, (“A federal audit as recently as January warned there was a ‘high risk’ that the government’s information-communications breakdown allowed the Boston Marathon bomb plot to evolve undetected and its perpetrators to elude quick capture.”)

[51]Bruce Schneier, Focus on the Threat, N.Y. Times, Room for Debate (Mar. 3, 2010, 7:07 PM),

[52]See Ronald Bailey, How Scared of Terrorism Should You Be?Reason, Sept. 6, 2011, (“chances of being killed by a terrorist are about one in 20 million”); Micah Zenko, Americans Are as Likely to Be Killed by Their Own Furniture as by Terrorism, Atlantic (June 6, 2012, 8:43 AM ET), (“For Americans, however, [data on terrorist attacks] should emphasize that an irrational fear of terrorism is both unwarranted and a poor basis for public policy decisions.”)

[53]See,e.g., Stephen Walt, What Terrorist Threat?, Foreign Policy (Aug. 13, 2012, 12:42 PM), (“we continue to over-react to the ‘terrorist threat.’”); Fareed Zakaria, What America Has Lost, Newsweek, Sept. 4, 2010, available at (“September 11 was a shock to the American psyche and the American system. As a result, we overreacted.”)

[54]SeeWhitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) (“repression breeds hate; that hate menaces stable government”), overruled byBrandenburg v. Ohio, 395 U.S. 444, 449 (1969).

[55]SeeJames Cavallaro, Drones: Killing enemies, and creating them [Blowback]L.A. Times,; see also Spencer Ackerman, Yemeni Tells Senators About ‘Fear and Terror’ Caused by U.S. Drones,Wired, Danger Room (Apr. 23, 2013, 6:50 PM),

[56]Benjamin Wittes & Ritika Singh, James Madison, Presidential Power and Civil Liberties in the War of 1812, in What So Proudly We Hailed 97, 99-100 (Pietro S. Nivola ed. 2012), available at

[57]Other People’s Money (1914), available at

[58]See Am. Civil Liberties Union v. C.I.A., 710F.3d 422 (D.C. Cir. 2013).

[59]Domestic drones and their unique dangers, Guardian, Mar. 29, 2013,

[60]See Kyllo v. United States, 533 U.S. 27, 33-34 (2001) (“It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”); United States v. Jones, 132 S. Ct. 945, 963 (2012) (Sotomayor, J., concurring) (“The availability and use of these and other new devices will continue to shape the average person's expectations about the privacy of his or her daily movements.”); see also Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476, 514 (2011) (discussing how Brandeis’s dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928) and the majority opinion in Katz v. United States, 389 U.S. 347, 353 (1967)were rooted in a reasonable expectation of privacy that underpins the Fourth Amendment).

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