Proposed Rules Regulating Domestic Drone Use Lack Police Warrant Requirement

2015.2.24.Drone.MainRules governing the commercial use of drones contain loopholes that would allow law enforcement agencies to deploy domestic drones without a warrant in some cases. (Image: via Shutterstock)

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In about two years, the number of municipal police departments and federal agencies using unmanned aerial systems (UAS) for surveillance purposes is expected to skyrocket as the Federal Aviation Administration (FAA) streamlines the process by which a drone operator can apply for a permit.

The FAA released proposed rules governing the commercial use of UAS on February 15 in a move widely expected to give thousands of businesses and public agencies the green light to use UAS for work purposes sometime in 2017, after the rules undergo a lengthy public review process. The White House simultaneously released an executive order February 15 intended to safeguard privacy and civil rights by directing federal agencies to publicly disclose information about how they use UAS in domestic airspace.

The proposed rules, which apply to drones that weigh only 55 pounds or less, would make it much easier not only for police departments, but also a variety of businesses, including journalists, photographers and agricultural workers, to fly domestic drones for work purposes. The FAA is currently working on a separate set of rules for larger drones, which the agency is expected to release in a few years.

Under the rules, operators will be required to pass a proficiency exam, and pay about $200 in fees to register their drone. Operators will have to fly their drones at speeds of less than 100 miles-per-hour, at altitudes under 500 feet, during daylight hours only and within either their own unaided line of sight or within the eyesight of designated observers on the ground.

The White House’s executive order directs federal agencies using domestic drones to draft a policy framework governing oversight and transparency of UAS use within 90 days. The directive outlines guidelines for data retention and dissemination of policies, as well as reporting requirements which mandate public disclosure of how federal agencies use UAS. But the executive order doesn’t go far enough in the eyes of the American Civil Liberties Union (ACLU), despite being described as a step in the right direction.

Neema Singh Guliani, who is legislative counsel with the ACLU, praised the White House’s directive for its public reporting requirements, saying the requirements will allow greater public discourse and debate about the appropriate uses of domestic drones by federal agencies. She also celebrated the fact that federal agencies will be mandated to draft policy frameworks on UAS use, because many of those agencies currently have no such policy framework. However, Guliani said the directive alone isn’t sufficient to protect people’s privacy from the particularly invasive surveillance opportunities that domestic drones represent as used by law enforcement agencies.

While federal agencies will be required to create a basic framework regulating domestic drone use, each agency will be developing those guidelines separately, which could lead to inconsistency or deficient standards within some agencies, according to Guliani.

She also took issue with certain aspects of the directive’s information-sharing rules, saying they were vague on the question of whether or not federal agencies can share information unrelated to the reason the data was collected by UAS in the first place. The executive order outlines that agencies can use UAS for any “authorized purpose,” but the order does not outline exactly what an “authorized purpose” is.

The executive order maintains that agencies must purge the data collected from UAS after 180 days, that is, unless an agency decides to keep the information because, again, it relates to an “authorized purpose.” In this instance, too, Guliani maintains that “purpose” is vague, and could potentially lead to a broad interpretation by federal agencies.

“I think there are certain minimum guidelines that I think should have been put in place by [the executive order] or should certainly be a part of whatever agency guidelines are produced,” Guliani said.

A crucial element that is missing from the White House order and proposed FAA rules, according to Guliani: a warrant requirement for law enforcement officials seeking to deploy domestic drones for surveillance purposes. “The fact that [the memo] leaves that to the discretion of each agency could be a concern down the line if the agency decides not to adopt that requirement,” Guliani said.

Many state, federal agencies and corporations are already using domestic drones, with more than 80 law enforcement agencies having applied for a special “Certificate of Authorization” from the FAA to use UAS since 2008. While the White House directive is aimed at addressing federal agencies, many states are still grappling with how to regulate the use of domestic drones.

More than a dozen states have enacted legislation regulating domestic drone use, while more than half of all states have introduced legislation regarding domestic drones, with a majority of those bills as well as already-enacted legislation requiring law enforcement agencies to obtain a probable cause warrant before a drone can be deployed.

But in the states that have enacted legislation, the laws vary widely and establish inconsistent standards. States such as Texas, for example, restrict domestic drone use, but the legislation contains so many exemptions for law enforcement agencies the ACLU have called it “an outlier” in terms of protecting privacy. Meanwhile states such as Florida, Oregon, Illinois, Montana and Tennessee require a warrant for law enforcement use in nearly all cases.

“That there are states that have looked at, and have adopted that warrant requirement, makes the omission in the presidential memo even more obvious,” Guliani said.

With no national legislation regulating domestic drone use, inconsistent and varying standards by which law enforcement agencies and corporations can deploy UAS in states, and the glaring omission of a warrant requirement at this point in the White House’s guidelines, a dangerous loophole remains present in which law enforcement agencies, and potentially corporations, in only a couple of years, can deploy UAS in masse to conduct surveillance on civilians who have not been charged with any crime.

But beyond the immediate concerns about domestic drone use, when we look at how drones may be integrated with other forms of nascent police surveillance technology, an even more Orwellian picture of the future of domestic drones begins to emerge.

Drones That Can See Through Walls, Read Your Texts and Recognize Your Face

With loopholes in national and state standards regulating UAS, law enforcement agencies could potentially be able to use invasive police surveillance technologies in conjunction with UAS to obtain information on large numbers of people that they otherwise wouldn’t be able to obtain without a warrant.

“The fact that drones now have also been combining with other forms of technology creates even a larger privacy risk,” Guliani says. “Imagine if there was a drone that was also combined with facial recognition technology. A drone flying overhead could identify large numbers of people and be tracking their movements.”

A leading manufacturer of the “StingRay” surveillance technology, used by federal agencies and municipal police departments alike to sweep up vast numbers of cell phone records from people who are simply in the radius of a targeted suspect, has already developed a kit to deploy the technology on aerial vehicles and unmanned aerial vehicles. This type of deployment may become the next logical step for the industry.

The use of StingRay technology as it currently stands is already incredibly secretive, with police departments and manufacturers such as Harris Corporation concealing their use of the phone-tracking equipment from the courts through the use of non-disclosure agreements.

The Department of Homeland Security’s US Customs and Border Protection and the FBI already use planes and drones in areas that are more than 100 miles of the Mexican border to conduct aerial surveillance, and government agencies have been revealed to have been using Cessna planes outfitted with StingRay technology to track suspects. The FBI has been resistant to answer even lawmakers’ questions about how many drones it operates and how often they are used.

“It is both technologically possible and by no means a leap to imagine that once the FAA approves broader use of drones within the US by law enforcement, [law enforcement officials] may put StingRays on them,” said Nathan Freed Wessler, a staff attorney with the ACLU’s Speech, Privacy and Technology Project, and an expert on StingRay technology.

UAS have also been outfitted with thermal sensing technologies to produce heat maps of people inside buildings.

Other advocates worry if domestic drones are deployed as a platform for providing temporary internet service to consumers, it could potentially give corporate drone operators access to the internet data of those consumers and threaten net neutrality.

“If internet companies were to deliver internet service in hard-to-reach places, which would be a good thing, would they then be collecting information in large quantities and would that information then be something that their contacts would then have access to?” asked Drew Mitnick who is junior policy counsel at Access, an organization dedicated to issues of internet freedom.

It’s questions like this that the National Telecommunications and Information Administration has been ordered by the White House to answer in a collaborative process, alongside civil society and industry groups, to develop guidelines for commercial drone use.

The ACLU’s Guliani pointed out, however, that invasive forms of surveillance, especially police surveillance, often impact communities of color disproportionately, pointing to US Customs and Border Protections’ ubiquitous use of drone surveillance in vast border regions impacting huge swaths of the populations that live in those areas.

“You’re not just talking about the physical border, you’re talking about an area that encompasses many major cities that have large minority populations, and the idea that these drones can be flown with little or no privacy protections really mean that, people, just by virtue of living in that region are somehow accepting that they have a right to less privacy,” she said.

African-American communities could well feel the disproportionate impacts of the integrated use of domestic drones and other surveillance in the coming years, as technologies such as StingRay are already being used mostly in the ongoing war on drugs to track those suspected of selling and buying drugs. The drug war has long negatively impacted communities of color, based on racialized drug policies and racial discrimination by law enforcement; two-thirds of all those convicted of drug crimes are people of color, despite similar rates of drug use among whites and people of color.

These already-existing racial disparities in intrusive policing tactics and deployment of surveillance technologies are one of the primary reasons civil liberties experts are saying the government often gets it backward when thinking about privacy issues: deploying intrusive technologies first, and coming up with privacy policies governing their use afterward (when they may already be violating many people’s civil rights).

“What we see with StingRays is the same phenomenon that we’re seeing with [UAS], where federal agencies are using them,” Guliani said. “State and local agencies are using them. There’s federal dollars that are going to buy them, and we’re kind of having the privacy debate after the fact with very little information.”