Civil unmanned aerial vehicles, or drones, have left the realm of science fiction and are making their way into use by businessmen, law enforcement officials and newsgathering organizations in the United States. This drone use is stirring up privacy concerns at the state level, but because these drones are being operated in public, there’s little in the way of American privacy laws that prevents their use. Constitutionally, the Fourth Amendment provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But is that enough in the face of this technological advancement?
The American Civil Liberties Union, in a story posted online March 6 (and updated June 21) by strategist Allie Bohm, reported that legislation to regulate drone use had been proposed in 42 states, enacted in six states and is still active in 28 states.. Part of the problem, however, is that the definition of “drone” has not been established uniformly. These aircraft come in all shapes and sizes, and some can stay aloft for long periods of time. Some can hover like a helicopter, while others fly like airplanes.
But even as the battle to define the term “drone” continues, tens of thousands of these small, unmanned vehicles are zipping through U.S. airspace. A story posted March 3 on the Reuters news site and written by Chris Francescani begins with, “They hover over Hollywood film sets and professional sports events. They track wildfires in Colorado, survey Kansas farm crops and vineyards in California. They inspect miles of industrial pipeline and monitor wildlife, river temperatures and volcanic activity. They also locate marijuana fields, reconstruct crime scenes and spot illegal immigrants breaching U.S. borders.” Franscescani reports that these drones are “armed with streaming video, swivel cameras and infrared sensors,” and it is the use of this cutting-edge technology that has raised privacy concerns in this country.
Greg McNeal, a law professor at Pepperdine University, addressed the privacy concerns regarding drone use in a story written Aug. 13, 2012, for Forbes magazine. He contends that “the unmanned systems industry is not prepared for the upcoming fight with privacy groups.” To bolster his argument, McNeal provided an example of an effort to streamline the airport security process in place since the 9/11 attacks in New York and Washington, D.C. The Department of Homeland Security came up with a plan in 2003 to use “data already in the hands of airlines, voluntarily provided by passengers,” to verify airline passengers’ security status ahead of time. He notes, “DHS was fought tooth and nail by the ACLU (American Civil Liberties Union) and other privacy groups. … We’re talking about reservation data here. This was a tool that could have stopped 9/11. It could have stopped the Christmas Day Bomber. And it was opposed by the privacy lobby. Are unmanned systems more compelling?”
Americans’ perspectives about drones remain divided. Slate’s Ryan Gallagher writes in an April 3 story posted online that the American public holds split opinions regarding drones. Gallagher’s story, titled “Privacy Risk or Future of Aviation? Five Perspectives on Domestic Drones,” lists the five prevailing views that emerged from those who participated in a Federal Aviation Administration call-in “engagement session” April 3:
- “Drones are a safety hazard.” – The callers who voiced this concern indicated that they believed unmanned drones could interfere with flight operations involving manned aircraft, or that a drone could crash in a populated area. Both scenarios could result in a loss of life. Another risk mentioned was that an unmanned drone could be “hacked” and have its controls taken over by another operator.
- “Drones are the future of aviation.” – These individuals do not see drone use as a threat to the U.S. population. In fact, they believe the United States should continue to advance drone technology, or it could be left eating the dust of other countries who do it instead.
- “Drones pose an unprecedented privacy risk.” – This group of respondents fear the intrusion of drones on the privacy rights of the American public. To counter this, they suggested such things as banning all drone use in the United States; regulations on drone use that includes the use of search warrants for law enforcement personnel to use drones for surveillance and evidence gathering; and a public database, accessible via a website, that would record who is using a drone, and when and where it was used.
- “Americans have the right to own a drone.” – Gallagher noted that one forceful caller, who said he was from Missouri, voiced this opinion. Gallagher added that “this position appeared rooted in an anti-Big Government stance strongly opposed to the introduction of any new laws and regulations that would govern how private citizens could and could not use drones.”
- “What about mission creep?” – Shades of George Orwell’s novel “1984” abound in this expression of concern by some callers. Gallagher wrote that “some contributors said they were worried the introduction of drones into domestic airspace would lead to a sort of incremental militarization, with increasingly advanced forms of the technology being use[d] as part of draconian policing operations.”
Gallagher notes that “the FAA (Federal Aviation Administration) has been given until September 2015 to integrate drones into the national airspace system, and it is currently working to develop six unmanned aircraft research and testing sites across the United States.”
Once the new rules take effect, “the FAA predicts there will be between 7,500 to 15,000 commercial drones flying in American skies in just five years,” according to a story by Lorenzo Franceschi-Bicchierai that was posted on the website Mashable.com on April 24.
He added: “This unforeseen expansion means that the drone business has large potential to grow, which is why 37 states are vying to host one of these six test sites.”
John Villasenor, a professor of electrical engineering and public policy at UCLA and a nonresident senior fellow at the Brookings Institute in Washington, D.C., uses the language of the Fourth Amendment in an article written for Forbes magazine Sept. 20 to argue that this constitutional protection “has served us well across more than two centuries of technology advances, and there is no reason to expect it will suddenly lose its protective powers when domestic use of unmanned aircraft becomes common.”
In his article, Villasenor noted “three 1980s-era Supreme Court decisions that found no Fourth Amendment violation in warrantless observations from manned government aircraft” to argue that “government investigators will sometimes be able to use UAVs without a warrant.” Not always, he wrote, but sometimes. The protection provided by the Fourth Amendment has continued through decisions handed down by the high court as recently as 2012, and Villasenor wrote that “in the aggregate, these rulings provide cause for optimism that, with respect to government UAV observations, the Fourth Amendment will be reasonably protective. Whether it will be sufficiently protective is a different question, and well worth attention.”
Drone manufacturers are aware of the privacy concerns circulating among the American public and members of Congress. Forbes staff member Kashmir Hill wrote an article July 6, 2012, detailing how a drone trade organization called the Association for Unmanned Vehicle Systems International has unveiled a code of conduct “to demonstrate the industry’s commitment to being ‘safe and responsible.’ ” As Hill notes, however, a code of conduct “is voluntary and not legally enforceable in any way.”
The ultimate enforcement of any drone operation may boil down to the local level, McNeal argues. In a Jan. 22 radio interview with North Country Public Radio’s David Sommerstein, he says, “If you’re concerned about what your local police department is doing, don’t turn to your congressperson in D.C. Turn to your city council.”