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With Drones Circling, How Should Lawmakers Respond?

The views expressed are those of the author and are not necessarily those of Scientific American.

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The MQ-8 Fire Scout is an unmanned autonomous helicopter developed by Northrop Grumman for U.S. military. Image courtesy of Dammit, via WikiMedia Commons

Drones come in a variety of shapes, sizes and capabilities that could greatly improve surveillance for law enforcement and public-safety purposes, whether it’s monitoring forest fires or providing reconnaissance for search-and-rescue operations. This technological diversity has served the U.S. military well, but it has a dark side in threats to personal privacy—and makes drones difficult to regulate.

In a subcommittee hearing that could play a crucial role in shaping drone policy—especially given that the technology is so new that current case law provides little guidance—legislators and legal experts gathered on Friday in Washington, D.C., to hash through the matter. They found a lot to disagree about, including whether existing U.S. laws—including the Fourth Amendment—are sufficient to protect privacy, or, assuming more laws are needed, whether the right frameworks should center on types of technologies or types of drone missions.

Congress has given the Federal Aviation Administration until 2015 to come up with rules governing domestic drone use. Fresh thinking is needed, as Scientific American noted in a recent editorial.

The overriding question is the impact of drone use on privacy. Although the U.S. Supreme Court has yet to hear a case specifically involving drone use, plenty of laws already on the books as well as legal precedents can guide drone use, John Villasenor, a nonresident senior fellow at Brookings Institution, said during Friday’s House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations hearing. The Fourth Amendment, for example, protects U.S. residents against unreasonable searches and seizures and requires probable cause for a court to issue a search warrant specific to a given location. Any new laws must consider the legality of a particular drone’s mission rather than the specific technology in use, he added.

Given the speed of technological change, it’s tempting for lawmakers to create frameworks that regulate the use of certain equipment, such as infrared cameras or systems that can keep drones in the air for days at a time without needing to refuel. But doing so would miss the point, said, Gregory McNeal, associate professor at Pepperdine University School of Law. It might be more effective for Congress to craft simple surveillance legislation, not specific to drones, that addresses the duration of a surveillance operation, as opposed to the platform used to do the surveillance. As an aid toward tracking correct usage, Congress could mandate that agencies employing drones catalog and publicly reveal their operations—where, when, drone type and purpose of surveillance, for example.

Aeryon Scout UAV in flight. Image courtesy of Dkroetsch, via WikiMedia Commons.

The American Civil Liberties Union disagreed that existing laws can manage drone use, explaining that potential privacy incursions can’t be compared with other methods of surveillance, particularly when as insect-sized unmanned aerial vehicles (UAVs) could someday act, literally, as a fly on the wall. Although drone use has been limited by cost and capability, this is changing, Christopher Calabrese, legislative counsel at the ACLU’s Washington legislative office, testified. He suggested that any new laws be based on four guiding principles:

  1. Following the principle that the accused are innocent until proved guilty, the government should not use drones for widespread surveillance of large areas in the hope of catching some wrongdoing. Instead, drone use should be subject to a warrant targeting a particular person and/or location.
  2. Information collected via drones for one purpose should not be used for other purposes and should be destroyed after it is no longer needed.
  3. Drones should not carry weapons; a drone does not have to defend itself or to apprehend someone, nor do drone operators necessarily have the training to determine when to use force.
  4. Ongoing oversight is crucial and should include feedback from the communities in which that drone is used.

Also discussed was the intersection of drones near private property. A 1989 Supreme Court decision ruled that police may use helicopters to peer into semiprivate areas—say, the backyard of a home—without first obtaining a warrant. Does this give local law enforcement the green light to deploy a fleet of drone helicopters equipped with high-definition and infrared cameras over a particular neighborhood?

Some legislators asserted that citizens have the right to privacy against drones while on their own property. “If you have private land, you have a reasonable expectation of privacy even from the air,” Rep. Jason Chaffetz (R—Utah) said.

Following this line of thinking, Rep. Louis Gohmert (R-Texas) asked whether any laws prohibit landowners from shooting down drones lingering over their property. Villasenor noted that the landowner would be liable for any injuries resulting from the takedown, but Rep. Frank Sensenbrenner (R—Wisc.) quickly noted that the hearing had run out of time and adjourned before any additional responses could be made to Gohmert’s question.

The debate’s hasty conclusion punctuated the message that the legalities surrounding drone use here are still very much up in the air.

Larry Greenemeier About the Author: Larry Greenemeier is the associate editor of technology for Scientific American, covering a variety of tech-related topics, including biotech, computers, military tech, nanotech and robots. Follow on Twitter @lggreenemeier.

The views expressed are those of the author and are not necessarily those of Scientific American.

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  1. 1. N a g n o s t i c 11:02 pm 05/17/2013

    There is no “right” to privacy. There is a prohibition against “unreasonable” search and seizures.

    If I’m standing on a street corner, it’d generally be regarded as “unreasonable” for a cop to frisk me, unless I was drinking in public or waving a gun around. I could be a felon, with my rights to own a gun or drink alcohol eliminated, yet the mere possibility that I could be waving a gun around in my house while chugging tequila, away from public view, would not reasonably be seen as sufficient cause to periodically search my house.

    “Away from public view” is the key determinate. Define it. I see no difference between corrective lenses, binoculars, electric utility metering, night vision aids, hearing-aids or sophisticated sound amplification equipment employed from street level or the sky, as long as there is no trespassing or warrantless entry by police. Looking at a house, even with X-ray Google-Glass, is not “entry” by today’s standards – unless we want to make it so. Of course, by today’s standards, that decision might be made by bureaucrats, with a nod and wink from our so-called elected officials.

    A drone is simply a mobile public surveillance camera.
    Wrongdoers have the responsibility to keep their wrongdoing under wraps – it’s not a matter of law enforcement or potential informers being obligated to turn a blind eye to actions visible to the public.

    The only solution I see for those who value secrecy for secresy’s sake is the wholesale banning of sensory enhancement devices – not likely, yet were it to come about you can bet it would affect all but law enforcement. Nuanced rules governing the use of such equipment by police are simply a facade put up to placate libertarians. I’m a realistic libertarian – I realise the only way one can successfully shield themselves from prying eyes or ears is to employ counter-measures, which sometimes are prohibited by law. Just look at Virginia’s radar-detector ban.

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  2. 2. N a g n o s t i c 11:05 pm 05/17/2013

    Of course felons are subject to periodic, formally announced visits. They are felons, after all.

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  3. 3. N a g n o s t i c 11:07 pm 05/17/2013

    One way out of our increasingly busy-body way of life is to decriminalize a lot of stuff.

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  4. 4. david123 8:41 am 05/18/2013

    Drones regulating drones. How apt. How 2013.

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  5. 5. Chryses 6:22 am 05/19/2013

    @1. N a g n o s t i c

    “Looking at a house, even with X-ray Google-Glass, is not “entry” by today’s standards – unless we want to make it so.”

    It may be time to do so, and to articulate what was once assumed to be civilized behavior.

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  6. 6. LarryW 12:55 pm 05/20/2013

    Nagnostic: “There is no “right” to privacy. There is a prohibition against “unreasonable” search and seizures.”

    Wrong. The 9th Amendment states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Is there a right to privacy? The 9th amendment certainly says that that right cannot be said not to exist because it is not enumerated. Follow?

    Constitutionally, it does not matter if the language of the 4th Amendment is different from or offers less protection than we deem appropriate for a “Right To Privacy”. The “Right to Privacy” can and should be wholly independent of any other language within the Constitution, says the 9th Amendment.

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  7. 7. Tomm Katt 1:03 pm 05/20/2013

    If it’s low altitude, doesn’t have an identifiable insignia and/or look official, I’m responding with a 10 gauge shotgun.

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  8. 8. johnmcq 9:43 pm 05/21/2013

    For better or worse, the ACLU’s “guiding principles,” at least the first two, have long since been swept aside. Public and private security cameras already are widespread and becoming moreso, with little or no regulation of who gets watched, who is watching or what the watcher can do with the information. Drones will extend the cameras’ reach, but we have already surrendered much of our precious privacy. And often willingly: if not in the name of “security” then in exchange for digital convenience online or at the checkout counter. Drones are just speeding our slide down the slippery slope. The conversation needs to be broader.

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  9. 9. Raghuvanshi1 2:09 am 05/22/2013

    Why U.S.invented Drones ?Simple answer is as psyche of American based on fear to destroy the enemies without single causality of American solder, this weaponizes is most useful.America murdered many Afghan and Pakistani rebels this way many innocent civilians also killed on Drones attacked but America never expressed remorse for that on the contrary proud of this great inventory.America did not understand that this weapon can invented by other countries also and can threat America.Is my information is correct Pakistan and china already have drones and other war monger countries are preparing.When U.S.created nuclear energy think superpower within year Russia also created nuclear energy and today many counties have that weapons.In my opinion fear psyche of America one day destroy whole world.Be remember you are digging your own tomb creating more and more dangerous devil may engulf you in near future

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  10. 10. Hel-n-highwater 6:29 am 05/22/2013

    what law school did the author not attend??? You can legally according to past case law go into cars without a warrant if a cop claims to see something suspicious since the 1990′s, you have been able to fly over land and look for drug growing or producing stuff of any sort for decades and stop and frisk is based on a cop’s experience.
    And I attended a Constitutional Law class in 1999 where two former state troopers backed up everything the ACLU member professor told us. Get over it, you have no rights. So now we do need drones and I want one along with my SKS and AK.

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  11. 11. 13inches 2:44 pm 05/22/2013

    I own a small Quadcopter with a mounted camera. I use the Quadcopter to film mountain and desert scenes. I have no interest in filming people or their houses. I sure hope all this talk about banning drones with cameras doesn’t spill over into the hobby world. Also, it seems aerial and street views of almost all houses in the USA are already available for all to see in Google Street views. Also, U.S. Government satellites are also constantly snapping high res photos of houses and people all over the USA and the world from afar. If I am sitting in my house or sitting in my backyard and a satellite or drone photographs me from afar, why should I care ? I DON’T care. The average U.S. citizen is photographed over 20 times per day by traffic cameras and ATM cameras and store surveillance cameras, etc etc etc. Why is a drone photo suddenly far worse than all these other photos ? All this hue and cry about drones destroying privacy is much ado about nothing.

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  12. 12. bucketofsquid 5:47 pm 06/3/2013

    Consider an idea. It can be a harmless idea such as “I like to wear my hat even indoors”. Now let us imagine that someone in power convinces other people in power that wearing a hat indoors is subversive because someone bad once wore a hat indoors. Drones have filmed you entering a building still wearing a hat. Instantly you transition from not doing anything wrong to being an enemy of the state. Your behavior didn’t change.

    This is why general surveillance is wrong. ATM, bank and traffic enforcement surveillance all serve to eliminate specific crimes. Generalized surveillance does not reduce crime but does allow tracking individuals for later targeting in purges.

    When mini-drones are cheap enough how many children will have them as toys? What do you do with the 8 year old caught filming through the window of the neighbor’s house?

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  13. 13. collettedesmaris 3:07 am 06/10/2013

    We would have done well to pay attention; back in May of 2012; to the words of Charles Krauthammer, an American Pulitzer Prize-winning syndicated columnist, political commentator & physician. His education is: Harvard Medical School, Harvard University, University of Oxford, & McGill University.

    In 2012 on FOX News, Krauthammer conveyed his opposition to drone warfare in the skies of the United States:

    “I’m going to go hard left on you here, I’m going ACLU. I don’t want regulations, I don’t want restrictions, I want a ban on this. Drones are instruments of war – point blank. The Founders had a great aversion to any instruments of war; the use of the military inside even the United States. It (The Constitution) didn’t like standing armies, & has all kinds of statutes of using the army in the country.
    I would say that you ban it under ALL circumstances, and I would predict – I’m not encouraging – but I am predicting – 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 this country.
    The Founders were deeply opposed to the militarization of civil society. There are all kinds of aversions to it, and this (Drone use) – is importing militarization, because it’s cheap,it’s easy,it’s silent. It’s something that you can easily deploy.
    It’s going to be, I think; the bane of our existence. Stop it here, STOP IT NOW.”


    The government isn’t even hiding the fact anymore that they’re using Drones to spy on us. Asking what we think the lawmakers should do is a question that shouldn’t even be asked.

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