UAVs: Will Our Civil Liberties Be Droned Out?

June 7, 2012 — -- Unmanned Aerial Vehicles, more commonly known as "drones" — the same basic technology used to hunt al Qaeda in Afghanistan — are increasingly being flown in American airspace. Drones are already being used to patrol the border, track fugitives, and shoot epic aerial scenes by Indie filmmakers -- but the technology is likely to be used for much more in coming years.

With Congress enacting a law giving the go-ahead for the use of drones in U.S. airspace last February, the drone industry is now poised to deploy the technology to monitor everything from neighborhood safety, to political protests, to traffic conditions. The possibilities of using drones for airborne, real-time newsgathering haven't been lost on the media, either. Drones have many positive uses, such as aiding firefighters, dusting crops, or scouting hazardous areas for workers, but -- without privacy and transparency rules -- these powerful surveillance tools also have strong potential for misuse.

The FAA has already authorized 63 U.S. launch sites and issued more than 300 temporary licenses to operate these flying robots over American soil. The pool of approved drone operators includes government agencies such as NASA and the Department of Homeland Security, the Army, Navy, Air Force, and Marines. Others include universities, local police departments, defense contractors, and individual towns, such as Herington, Ky., population 2,526.

All this is happening with little public awareness, and even less concern by the government or the drone industry for the privacy issues inherent in authorizing the deployment of what amounts to flying ad hoc surveillance networks in U.S. airspace. That is due in part to the law's lack of both transparency requirements and authority to promulgate privacy rules. There are few clear legal barriers to using drones to collect sensitive information about individuals for a wide variety of purposes -- commercial, law enforcement, idle curiosity -- and individuals have no right to even learn who is using drones to collect information about them or for what reason. In fact, the FAA only released information on the launch sites and identities of drone license holders after being sued under the Freedom of Information Act.

The FAA is moving full speed ahead to meet a set of firm deadlines mandated by law. Under the law, the FAA must work with the Department of Transportation (DOT) to:

• Expedite the current licensing process for government and non-government drones and make the process permanent,• Establish rules for the certification and operation of drones, and • Oversee the full integration of government and non-government drones in U.S. airspace.

The next deadline is Aug. 12, 2012, for the early integration of "safe" drones. At that time the DOT secretary has to determine if drones (government and non-government) can zip through the airspace without being a hazard to the public or national security. The secretary then must develop the rules that will allow these drones to launch.

Now Local Sheriff Has Air Support

Police departments across the U.S. are increasingly drawn to drone technology. It's relatively cheap, easy to use and versatile. Drones can carry facial recognition cameras, license plate scanners, thermal imaging cameras, open WiFi sniffers, and other sensors.

And they can be armed.

In Texas, a Montgomery county sheriff's office recently said it would deploy a drone bought with money from a Department of Homeland Security grant and was contemplating arming the drone with non-lethal weapons like tear gas, rubber bullets or Taser-style rounds.

The notion of these unblinking sentinels keeping watch over Americans isn't sitting well with the citizenry.

Columnist and Fox News pundit Charles Krauthammer recently stoked the anti-drone fires during a Fox News broadcast: "I would predict, I'm not encouraging, but I will predict, that the first guy who uses a Second Amendment weapon to bring a drone down that's been hovering over his house is going to be a folk hero in the this country."

Rodney Brossart didn't shoot down a drone but does hold the infamous title of "First Man in the U.S. Arrested With Drone Evidence." Brossart told U.S. News and World Report that he would fight the case, calling the use of a drone in his capture "definitely" illegal.

The comments section attached to virtually any online story on drones is a crowd-sourced early warning sign. People are upset and uncertain. Understandably, they don't want companies or the government hovering over their backyards.

Privacy and Transparency Rules Needed -- Fast

As America enters an era of unprecedented aerial surveillance, the Congress needs to go back and fix its mistake on the privacy front; the FAA needs to establish clear transparency guidelines that will allow a public accounting of drone operators and operations; and finally, the industry needs to step up and fill in the gaps with meaningful codes of conduct worthy of public trust.

Congress fumbled away the opportunity to build civil liberties protections into the FAA Reauthorization Act of 2011 which authorized domestic drones. They rushed the bill through without a thought about the rights of the American people. Congress should go back and right its mistake by giving the DOT authority to make privacy rules for government and non-government drones. (My organization, CDT, has published a set of recommendations for Congress regarding drone privacy.)

Two members of Congress, Rep. Ed Markey (D-Mass.) and Joe Barton (R-Texas) have sent a joint letter to the FAA expressing their concern at the inevitable collision course between drones and personal privacy.

The letter calls drone technology "invasive and pervasive surveillance without adequate privacy protections." It urges the FAA to "ensure that the privacy of individuals is fully protected and the public is fully informed about who is using drones in public airspace and why."

But as it now stands, citizens lack a basic right to know who is operating the drones circling their houses, what information is being collected and how it will be used.

The FAA should develop transparency requirements as part of the drone licensing process. At a minimum, the agency should:

• Require that drone license applicants submit a written statement of the drone's surveillance capabilities and the intended use of information collected by the drone,• Make the documentation associated with the license application available online, with possible national security exceptions.

Such transparency guidelines are no panacea, but are a first step toward holding drone operators accountable.

The Drone Industry—has an image problem, as is evident by the nearly ubiquitous negative reaction to domestic drone surveillance strewn across the Internet. The industry is countering with a PR campaign aimed at reassuring the public. But a PR campaign fails to address the public's legitimate concern over drone surveillance. Rather than focusing on PR, the industry should develop a solid, enforceable code of conduct for drone operators that include privacy and transparency.

Not to be forgotten — the public can also play its own role. By keeping aware of key deadlines in the long march toward December 2015, when the final rules for full integration of drones into the national airspace are due, the public can look for opportunities to step into the process and make their voices heard. And they can tell Congress to fix its mistake and require strong privacy and transparency rules for domestic drone use.

If all this talk of drones hovering above the swing sets and hot tubs of America creeps you out, then make sure you participate when and where you can. It's much more productive to sound off to Congress, the FAA, and DOT about your concerns than to become the "folk hero" of Mr. Krauthammer's prophecy.

Leslie Harris is president and CEO of the Center for Democracy & Technology