Senate Committee Urged to Update Privacy Laws in Face of Increasing use of Drones

March 20, 2013

by Jeremy Leaming

While the Obama administration has justifiably been knocked for its secretive and deadly use of Reaper and Predator drones to kill suspected terrorists overseas, the private and public use of drones here at home is in need of some serious discussion say groups and individuals concerned about eroding privacy rights.

During a Senate Judiciary Committee hearing today a law professor and Amie Stepanovich of the Electronic Privacy Information Center (epic.org) urged lawmakers to revamp the nation’s privacy laws to ensure that public and private use of drones do not shred what privacy rights we have left.

Ryan Calo, assistant professor of law at the University of Washington School of Law, told the committee that citizens have good reason to be concerned about the increasing use of drones for an array of purposes. During his testimony, Calo reiterated the need for the nation to update laws to protect privacy – technology is fast outpacing laws protecting privacy.

“Drones have a lot of people worried about privacy – and for good reason,” Calo told the Senate committee. “Drones drive down the cost of aerial surveillance to worrisome levels. Unlike fixed cameras, drones need not rely on public infrastructure or private partnerships. And they can be equipped not only with video cameras and microphones, but also the capability to sense heat patterns, chemical signatures, or the presence of a concealed firearm.

“American privacy law,” he continued, “meanwhile, places few limits on aerial surveillance. We enjoy next to no reasonable expectation of privacy in public, or from a public vantage like the nation’s airways. The Supreme Court has made it clear through a series of decisions in the nineteen-eighties that there is no search for Fourth Amendment purposes if an airplane or helicopter permits officers to peer into your backyard. I see no reason why these precedents would not extend readily to drones.” See Calo’s written testimony here.    

The drones discussed at today’s hearing are not like the types employed overseas in ongoing counterterrorism operations.  (A subcommittee led by Sen. Richard Durbin (D-Ill.) will explore the drone war and its intersection with constitutional rights in April.) The drones are much, much smaller and have been used for police surveillance and by public safety agencies to assess damages from storms, study hurricanes, tornados and flooding for example. Many of those drones weigh mere pounds and are operated in a limited fashion. Michael Toscano, president & CEO of the Association for Unmanned Vehicle Systems International (AUVSI), told the committee that the industry does not support “weaponization” of civil drones. (He also informed the lawmakers that the industry does not refer to the technology as drones, they may be pilotless, but they are operated by humans from nearby control centers. (Sen. Leahy said he and others on the committee would refer to drones as drones regardless of what the industry dubs them.)

 

Several of the senators, including Leahy, Durbin and Dianne Feinstein (D-Calif.) expressed concern that drone technology would continue to rapidly change and that at the moment there are little parameters in place to ensure that private and public use of drones is not abused.

For instance Leahy asked whether commercial drones could be used for ongoing persistent surveillance and others expressed concerns that the drones might be outfitted with munitions, illegally.

Stepanovich, director of the epic.org’s Domestic Surveillance Project, urged the lawmakers to consider legislation to ensure that drones do not become a pervasive tool to invade the privacy of Americans.

“Today, drones greatly increase the capacity for law enforcement to collect personal information on individuals,” she said. Although Stepanovich recognized the positive uses of these small drones, like fighting forest fires or conducting search and rescue operations, she said they also can be used to illegally invade the privacy of Americans.

“However, when drones are used to obtain evidence in a criminal proceeding, intrude upon a reasonable expectation of privacy, or gather personal data about identifiable individuals, rules are necessary to ensure that fundamental standards for fairness, privacy, and accountability are preserved.”

Stepanovich noted the complexity of the technology and how quickly it is changing, becoming much more sophisticated, smaller and with greater ability to collect personal information. She said drones “present a unique threat to privacy. Drones are designed to maintain a constant, persistent eye on the public to a degree that former methods of surveillance were unable to achieve.”

For example, she noted that the Department of Homeland Security (DHS) was in the midst of crafting drones “that will carry facial recognition technology, able to remotely identify individuals in parks, schools, and political gatherings.”

And like Calo, Stepanovich said the nation’s privacy safeguards are woefully inadequate. She noted the high court 20 years ago found that manned aerial surveillance “from as low as 400 feet” could be accomplished without a warrant. And moreover there is no federal law that “provides adequate safeguards to protect privacy against increased drone use in the United States.”

Stepanovich said Congress does have a role to play here and that it should do so sooner rather than later. She said a both public and commercial drone operators should be required to obtain a drone license and provide a detailed explanation of use of the drones. Moreover, law enforcement officials should be required to obtain a warrant for law enforcement operations. See Stepanovich’s testimony here.

The Obama administration has thus far provided a terribly weak justification for the lethal drone strikes overseas, even to kill U.S. citizens. And that information – apparently a summary of lengthier documents from the Office of Legal Counsel – was leaked. The administration continues to stall on providing transparency about its use of drones.

Lawmakers should continue to press the administration on its drone warfare, but they should also consider the impact of commercial and public drones on privacy rights. It is, as several lawmakers noted, past time to update privacy laws to ensure that private and public use of drones do not subvert the Fourth Amendment or the spirit of that Amendment, which is a crucial component of the Constitution’s protection of privacy.