The Seattle Police Department’s planned demonstration of its small surveillance drones quickly devolved into a noisy protest. Angry residents attending the community meeting in October chanted “No drones!” drowning out officers’ attempts to explain how the unmanned aerial vehicles would support certain criminal investigations, help out during natural disasters, and assist in search-and-rescue operations. Now it’s clear that Seattle’s drones, purchased with federal grants, won’t be flying over the metro area anytime soon. Amid backlash from civil-liberties advocates and citizens worried about government invasion of their privacy, the mayor earlier this month tabled any drone ambitions—for now.
Public concerns are not limited to Seattle. Lawmakers in at least 11 states want to restrict the use of drones because of fears they will spy on Americans, and some are pushing to require warrants before the robots collect evidence in investigations. Just this month, the Virginia General Assembly passed a two-year moratorium on drones. The outcry comes after the Electronic Frontier Foundation sued last year for a list of drone applicants within the U.S. When that information went public, staff attorney Jennifer Lynch says, “it really got people up in arms about how drones are being used, and got people to question their city councils and local law-enforcement agencies to ask for appropriate policies to be put in place to regulate drone usage.”
Drones change the game: Nearly continuous surveillance could be possible without a physical intrusion such as a property search or an implanted listening device. The flying robots can carry high-powered cameras, even facial-recognition software or thermal imaging to “see” through walls. They can hover, potentially undetected, for hours or days at a time.
As of yet, however, there are no laws governing the use of domestic drones when it comes to privacy. Unless Congress or the executive branch moves to regulate the robots’ use before they take to the skies en masse, states will likely continue to try to limit or ban drone use altogether, which could stymie their potential for other, beneficial uses. And failing to enact privacy limits only increases the likelihood of an incident in which the public perceives that the technology is being misused.
The Federal Aviation Administration, which is charged with overseeing drone implementation in the U.S., says its focus is “totally on safety,” not privacy worries. “We are concerned about how it’s being used only to the extent it would affect the safety of the operation,” says FAA spokesman Les Dorr.
As it happens, domestic drone operations are relatively limited because of safety concerns. The FAA has issued nearly 1,500 permits since 2007 for the use of drones by public entities, such as law enforcement or fire departments, or by universities conducting research. Of those, 327 are active. For example, Customs and Border Protection uses drones to keep tabs on the border with Mexico, and NASA deploys them to monitor hurricanes.
But the sky will open to drones in 2015. A federal law signed last year directs the FAA to safely integrate the unmanned vehicles into the U.S. airspace by then, paving the way for businesses and other private entities to fly their own drones. With the agency estimating that some 10,000 commercial drones could be flying by 2017, picture this: news outlets surveying damage from natural disasters, or paparazzi snooping on celebrities. And all 18,000 state and local law-enforcement agencies could be potential customers.
The FAA last week began searching for six locations to test drones and is asking for input on privacy protections for these sites. While the agency acknowledges that privacy is an issue that must be addressed, it does not claim overall rule-making authority. “It’s unclear who’s responsible for privacy issues at this point and time,” says Gerald Dillingham, director of civil-aviation issues at the Government Accountability Office. “No one has stepped up to the plate.”
GAO recommends that the FAA, along with the Justice and Homeland Security departments, discuss privacy parameters. “If we wait until there’s a crisis, oftentimes the rules and regulations that are made in crisis aren’t our best showing,” Dillingham says. Congress can also act; Reps. Ted Poe, R-Texas, and Zoe Lofgren, D-Calif., introduced a bill last week requiring warrants for the use of drones in criminal investigations.
The American Civil Liberties Union sees momentum building to put privacy protections in place before the drones become commonplace. It insists that law-enforcement agencies should not use them for investigations unless authorities have reasonable suspicion they will turn up a specific criminal act. This is a lower threshold than a warrant, staff attorney Catherine Crump says, because it does not require officers to go to a judge. “We think that standard is what is necessary to prevent law-enforcement agents to engage in purely suspicionless use of drones, flying them around to see what’s going on.”
As it stands, “there’s really not a lot in American privacy law that’s going to be much of a barrier to using drones,” University of Washington law professor Ryan Calo says. Court cases invoking the Fourth Amendment, which guards against unreasonable searches, largely hold that a person has no reasonable expectation of privacy in public, or from a public vantage point, such as from an aircraft overhead, Calo says. There are signs, however, that the Supreme Court is reexamining this doctrine. In a case decided last term, five of the justices objected to police affixing a GPS device to a car without a warrant, and four more objected to the continuous surveillance of a suspect. Drones can achieve the same goals without touching a vehicle.
Calo thus believes that drones could be the catalyst for much-needed changes to privacy laws in a nation in which targeted, unchecked surveillance is becoming increasingly possible. The danger lies in it becoming the norm.
This article appears in the Feb. 23, 2013, edition of National Journal as Skyfail.