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Lawmakers Ponder the Dawn of a Drone-Surveillance State

BY Sarah Lai Stirland | Wednesday, March 20 2013

Senate lawmakers on Wednesday grappled with the question of how they can preserve the privacy rights of American citizens as domestic uses of unmanned aircraft take off both in the private sector and in the world of law enforcement.

Senate Judiciary Committee Chairman Patrick Leahy, a Democrat from Vermont, put the scale of the issue up front: The Federal Aviation Administration estimates that as many as 30,000 unmanned vehicles, more popularly known as drones, could be flying in U.S. airspace by 2020. Drones' growing popularity and capabilities (some have characterized them as "flying smart phones") have troubled the public and lawmakers around the country because of a lack of clarity about rules governing their use. The American Civil Liberties Union estimates that at least 30 states have proposed legislation designed to outline rules on drones.

The Electronic Frontier Foundation has found that several local law enforcement agencies have applied for licenses from the Federal Aviation Administration through a Freedom of Information Act lawsuit, and that "drone flights in the U.S. have been all about developing and testing surveillance technology." Other entities applying for licenses include colleges, the Department of State, and Customs and Border Protection, among other groups.

Wednesday's hearing focused on how lawmakers could enact some boundaries on the surveillance activities performed by some law enforcement agencies, given the limitations of current case law and the Fourth Amendment, which generally doesn't apply to public spaces.

Leahy acknowledged the many non-invasive uses of drones in his opening statement, but wondered when law enforcement agencies should be required to first obtain search warrants before embarking on their surveillance projects.

"Drones are able to carry out arduous and dangerous tasks that would otherwise be expensive or difficult for humans to undertake. For example, in addition to law enforcement surveillance, drones will potentially be used for scientific experiments, agricultural research, geological surveying, pipeline maintenance, and search and rescue missions," he said. "While there may be many valuable uses for this new technology, the use of unmanned aircraft raises serious concerns about the impact on the constitutional and privacy rights of American citizens."

He also noted that this concern is bipartisan, and that it extends from the "far left" to the "far right."

Ranking Member Charles Grassley, a Republican from Iowa, confirmed Leahy's observation, and also spent much of the hearing exploring what the limits of current case law are. He noted that the Supreme Court has given Congress a legal starting point of reference. In 2012, the court ruled that the act of placing a GPS device on a car by law enforcement authorities to track it over time without a warrant constituted a search under the Fourth Amendment.

Both local governments and the federal government face a host of questions with the new capabilities on offer, he noted.

“Should local governments be allowed to use drones to search for traffic violations, and building code violations?” he asked. And: “Should the federal government use drones to follow around disability claims to see whether they’re fraudulent?”

The witnesses didn't get to those questions. Instead, the discussion focused on where the rules should be enacted, and how they should be enforced.

Ryan Calo, an assistant professor at the University of Washington School of Law, recommended that federal lawmakers should leave the rule-making and enforcement up to the FAA, which he said should make the granting of licenses contingent on compliance with its to-be-developed rules on privacy. He also suggested that federal lawmakers should leave the lawmaking to state legislatures.

Michael Toscano, the President and CEO of the Association for Unmanned Vehicle Systems International, said that the FAA isn't equipped to deal with privacy issues, noting that the agency's prime job is ensuring safety. Sen. Al Franken (D-Minn.) also noted that the FAA has told the Government Accountability Office that it feels that it doesn't have sufficient expertise in the area to be the prime agency to deal with the privacy issues.

Witnesses also advocated for regulations that would oblige people using drones to disclose what they plan to use them for.

It wasn't clear what direction lawmakers were headed in during Wednesday's hearing, but most of those who spoke appeared to think new rules of some form are needed.

Grassley summarized their attitude when he said: "The thought of government drones buzzing overhead monitoring the activities of law-abiding citizens runs contrary to the notion of what it means to live in a free society.”