Controversial Counter-Drone Provision Flies Under the Radar

Capitol Hill is quietly weighing adding a sweeping drone surveillance proposal to the FAA bill—and civil liberties advocates are worried.

AP Photo/Seth Wenig
Sept. 19, 2018, 8 p.m.

As Congress moves to wrap up a long-running debate to reauthorize the Federal Aviation Administration ahead of a Sept. 30 deadline, civil-liberties groups are sounding the alarm over what they see as a stealthy attempt to shoehorn a contentious drone proposal onto a must-pass piece of legislation.

The Preventing Emerging Threats Act is a bipartisan bill that would grant the Justice and Homeland Security Departments expansive new powers to seize, shoot down, surveil, and hack unmanned aerial systems that encroach on facilities, events, or assets the agencies deem to be at high risk from bad actors—a nebulous list that could include political rallies, professional sports games or facilities housing government witnesses.

Lawmakers have pointed to the recent use of armed drones by the Islamic State, and the attempted assassination of Venezuelan President Nicolás Maduro by drones packed with explosives, to illustrate the importance of countering the emerging threat.

Civil-liberties advocates, however, say the additional authorities Capitol Hill wants to grant law enforcement would open up drone users to an unacceptable—and likely unconstitutional—amount of federal surveillance. And by seeking to attach it to the FAA reauthorization bill, they accuse lawmakers of trying to duck a substantive debate on key constitutional questions.

“A bill that raises these kinds of privacy and civil-liberties concerns shouldn’t become law, and it certainly shouldn’t be passed as part of this larger package that makes it very difficult for members to raise concerns and seek amendments to problematic provisions,” said Neema Singh Guliani, the lead legislative counsel for privacy and technology at the American Civil Liberties Union. “We’ve got a bill that essentially would give DOJ and DHS enormous new surveillance powers, the ability to use force, to seize private property, and to do all of that with no judicial oversight whatsoever.”

The bill initially exempted DHS and DOJ from considering any restrictions imposed by Title 18 of the U.S. Code, which governs criminal procedure and would grant due-process provisions for drone operators whose devices are targeted. Privacy advocates and an industry representative tell National Journal that a newer draft now circulating scraps the blanket Title 18 exemption. But, they add, it still retains broad exemptions from the privacy protections afforded by the Wiretap Act, the Computer Fraud and Abuse Act, and pen-register and trap-and-trace statutes.

Robyn Greene, the senior policy counsel for New America’s Open Technology Institute, said the agencies are asking for a “blank check.” While law enforcement previously had the emergency authority to take action against civilian drone threats, their actions would be subject to rigorous judicial scrutiny after the fact.

That’s not the case with the new legislation, said Greene, adding that the bill also allows authorities to use the information collected from a seized or hacked drone as part of any criminal investigation or enforcement action—even if it’s unrelated to the initial security concern.

“Once they collect the data, there’s really nothing they can’t do with it,” said Greene.

The Preventing Emerging Threats Act passed out of the Senate Homeland Security and Governmental Affairs Committee in June with the support of both Chairman Ron Johnson and Sen. Claire McCaskill, the committee’s ranking member. During the markup, Johnson expressed his hope that the legislation could be attached to the National Defense Authorization Act or, failing that, “some other piece of legislation.”

A spokesman for Johnson wouldn’t say whether the senator is now pushing for the counter-drone proposal to be included in the FAA bill. But Sen. John Thune, the chairman of the Senate Commerce Committee, told reporters Tuesday that the proposal was part of ongoing FAA negotiations.

“I think there’s pretty broad agreement that it certainly could move on this vehicle,” Thune said, when asked whether the counter-drone provision would hitch a ride on the FAA bill.

Negotiations on drones are also ongoing on the House side. A House Democratic aide told National Journal on Tuesday that lawmakers on the House Homeland Security Committee “are hopeful agreement can be reached to provide limited authority to DHS and DOJ in a manner that adequately protects the privacy and property rights of Americans.” One “positive development,” the aide added, came when the Trump administration circulated proposed edits to the counter-drone proposal last week.

Privacy groups and industry representatives expect the counter-drone proposal will be included in the FAA bill, provided that both chambers can come to an agreement on a host of other issues ahead of next week’s deadline. But civil-liberties advocates say the latest move to remove the blanket Title 18 exemption amounts to little more than window dressing.

“Honestly, I think it’s cosmetic,” said Greene. “I think it’s so that they can say that they have narrowly tailored the bill.”

Civil liberties groups are gearing up to fight against the inclusion of the counter-drone provision in the FAA bill, arguing that the legislation deserves its own hearing in the House. India McKinney, a legislative analyst with the Electronic Frontier Foundation, flew from San Francisco to Washington D.C. on Tuesday with the hopes of meeting with lawmakers from the House Committee on Transportation and Infrastructure, Freedom Caucus members and lawmakers on the House Judiciary Committee.

“It’s an important enough issue, and it’s complicated enough, that this is something that really should benefit from regular order,” said McKinney, noting that the EFF has already directed its membership to call their lawmakers and urge that the provision be stripped out of the FAA bill.

But it’s not clear whether privacy-minded lawmakers in either chamber are prepared to delay or derail the FAA bill over opposition to the counter-drone provision. A spokesman for Rep. Jerrold Nadler, the ranking member on the House Judiciary Committee, did not respond to a request for comment on the provision. The office of Democratic Sen. Ron Wyden declined to say whether the senator planned to oppose the provision, while the office of Republican Sen. Rand Paul did not respond for a request for comment.

Privacy advocates also may not receive much help from the commercial drone industry. Lisa Ellman, a partner at Hogan Lovells and co-director of the Commercial Drone Alliance, said the absence of clear law enforcement powers “has been, for the last [several] years, the number one issue that has essentially halted rulemaking and policymaking” in the commercial drone space.

Those gaps in authority, she argued, have so far prevented lawmakers from passing legislation that would allow commercial operators to fly at night, beyond visual line-of-sight or over crowds of people. “So from a pro-innovation perspective, as well as concern about safety and security, we support the spirit of the counter-drone legislation,” said Ellman.

And even if the counter-drone provision falls through the cracks during the ongoing FAA negotiations, advocates expect it to pop up again once another piece of must-pass legislation rolls around.

“[DHS and DOJ representatives] have been very, very clear that they want this authority, [and] they want it now,” said McKinney. “They don’t want to have to come back next Congress. And they’re going to stick it to anything that moves.”

Alex Rogers contributed to this article.
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