Will Domestic Drone Privacy Bills Fall Short Because of ALEC, Defense Industry Influence?

It’s troubling enough to know that much of your electronic metadata is being swept up by third party corporations and the NSA. But in just a few short years, commercialized domestic drone technology may be able to capture private information and share it with law enforcement agencies after the technology becomes fully integrated into the National Airspace System after September 2015. Moreover, the American Legislative Exchange Council (ALEC) and many defense industry contractors may have a hand in shaping drone privacy policy.

ALEC is anticipating the release of model policy from its international relations and national security task force for its lawmaker members to use in regulating civilian drone technology in state legislatures across the U.S., according to a comment the group submitted in August to the Aerospace States Association.

The Association in conjunction with the National Governors Association and the National Conference of State Legislatures released a list of privacy recommendations for regulating domestic unmanned aerial vehicles, or drones, to help standardize piecemeal bills aimed at restricting commercial drone use in state legislatures across the United States.

Legislation regulating commercial drone technology has been introduced at the federal level, in more than 40 state legislatures and in many municipalities as states prepare for the Federal Aviation Administration (FAA) to integrate the technology into the National Airspace System by 2015 to comply with a federal law enacted last year.

Civilian drones already are being used for some commercial purposes approved by the FAA and by some law enforcement agencies under FAA guidelines. The FAA predicts tens of thousands of commercial drones, which are smaller than military drones and often can resemble model airplanes and helicopters, will be operating over U.S. skies after the technology becomes fully integrated.

ALEC stated that some of the regulations being introduced in state legislatures may be too restrictive and could hurt the emerging civilian drone industry, according to its comment:

State legislators are concerned that [commercial drone] surveillance could threaten the civil liberties, especially the privacy of their constituents, so the trend in the legislatures is to err on the side of highly restrictive regulations. Unfortunately, these restrictions might ultimately prevent civilian institutions from taking advantage of [drones] as a cost-effective tool to perform their duties more efficiently during a time of shrinking state budgets. In many cases, ALEC legislators are spearheading these restrictive policies, often due to an incomplete understanding of the issues involved and [drone] capabilities.

If misconceptions are not corrected in the immediate future, misguided policy will continue to proliferate throughout state legislatures, and this policy is likely to inform future national policy on domestic use of [drones].

The Association sought comment not only from ALEC, but from a myriad of groups including the American Civil Liberties Union (ACLU), the National Association for Criminal Defense Lawyers, the Association for Unmanned Vehicle Systems International, an industry group, as well as a law enforcement group.

But civil liberties groups including the ACLU and the Criminal Defense Lawyers did not endorse the privacy recommendations the Association ultimately is urging state legislators to consider. Further, at least three members of the Association’s policy committee, including its chairperson, are associated with defense contract industries such as Lockheed Martin and Northrop Grumman.

Allie Bohm, advocacy and policy strategist for the ACLU, said the privacy recommendations fell short. She said the ACLU is calling for at least reasonable suspicion as a requirement for drone surveillance in public spaces and said the recommendations shouldn’t have dropped out one particularly crucial proposal: The prohibition of information collected for commercial purposes to be used for law enforcement purposes without a warrant.

“We don’t want to create a situation where the government has to meet higher standards to use its own drones than it does to get information from a third party, private drone, because then obviously, there’s an incentive to go to the third party to get the data rather than going through the process of getting a warrant or getting a court order, or whatever the requirement in that state is to use a drone,” Bohm told Truthout.

Many of the bills being introduced in state legislatures require a warrant before law enforcement officers can use a drone, but requirements regarding data sharing between commercial drone companies and law enforcement agencies as well as the issues of law enforcement’s retention of data are less common. Some states are proposing banning law enforcement officers from drones altogether, which could further incentivize information sharing in those states.

“I’m just not sure everyone who was advocating for these bills or voting for these bills sort of thought through all of the issues,” Bohm said. “I think in some ways, the data retention part or the getting data from third parties … was just not as well thought out.”

Bohm told Truthout the recommendations outlined by the industry’s Association, the Governors Association and the Conference of State Legislatures could influence the 2014 legislative session, because many state legislatures will need to reintroduce drone legislation, but it’s still a little too early to tell.

Charles Huettner, who is executive director of the Association, told Truthout that the group left that proposal off its recommendations because it felt that “it would be impractical to limit federal and police and others from contracting out.”

“A lot of the data analysis for police and federal officials and whatever are done by private companies, so if there was no ability to share, they couldn’t contract out and they couldn’t actually do their job,” he said.

But Mason Clutter, who is national security and privacy counsel with the Criminal Defense Lawyers, pointed to the expanding NSA scandal over metadata surveillance as an example of why third party information collected from drones must be regulated.

She also agreed that, like with the Drug Enforcement Agency-NSA scandal, officers might be able to use information collected from civilian drones and obtained by the NSA against a defendant while recreating their trail of evidence, in future scenarios, undermining due process concerns about exculpatory evidence.

“There is going to be such a huge amount of data that is gathered, that access to that information in the criminal context is going to be extremely crucial in consideration of due process,” Clutter said. “The amount of exculpatory information that could be available is unlimited. [Data] retention times are going to be necessary in order to allow both the defense and the prosecution access to this information. We want to be aware of the fact that [data obtained from] surveillance technology can be both inculpatory and exculpatory.”

But ultimately the Criminal Defense Lawyers could not endorse the Association’s recommendations either, and for slightly different reasons than the ACLU. Clutter says that the standard obtaining a warrant before using a surveillance drone only if there is an expectation of privacy at play can be problematic in a civilian drone context because courts have ruled there is no reasonable expectation of privacy when manned aircraft fly in FAA-regulated airspace.

She says police will argue there is likewise no reasonable expectation of privacy with civilian drones that operate in FAA-regulated airspace. But civilian drones will be flying at much lower altitudes than manned aircrafts, over backyards, for instance, and next to windows.

The Criminal Defense Lawyers suggested that the Association’s recommendations should have included what is known as a “suppression remedy,” meaning that if any part of the legislation were to be violated, law enforcement should not be allowed to use evidence obtained from a surveillance drone in a criminal prosecution.

Both the ACLU’s Bohm and the Criminal Defense Lawyers Clutter agreed that stricter privacy protections ultimately would be good for the emerging civilian drone industry.

Having strict privacy protections would “create a situation where people are assured their privacy is going to be protected when the government is using drones so they won’t be quite as resistant to their law enforcement agencies requiring drones,” Bohm told Truthout. “It’s going to make it a lot easier for them to sell their product and, frankly, a lot easier for them to test their product.”