Starting in 2015, the skies above the United States will become infiltrated by a rare creature: drones. Also known as unmanned aerial vehicles (UAVs), drones are currently forbidden from flying in U.S. airspace above 400 feet, unless the Federal Aviation Administration (FAA) provides a license. But thanks to a bill passed by Congress early this year to make these licenses easier to get, drones will likely become a part of everyday life for Americans.
While fun and futuristic, this coming reality unearths serious questions about privacy and personal liberty in the 21st century. A report published last week by the Congressional Research Service (CRS) shows that our laws are currently unprepared to deal with the privacy implications posed by the use of drones. The report (pdf) is an excellent read — at least if you’re a wonk like me. But if you don’t have time to peruse a 20-page CRS report, here are the 13 things you must know about the looming drone privacy apocalypse.
1. There will be 30,000 drones in the sky in less than 20 years
The FAA estimates (pdf) that within the next 15 years, more than 20,000 drones will take to the skies in the U.S., including drones operated by police, military, public health and safety agencies, corporations, and the public in general. That number is expected to jump to 30,000 within 20 years from today — a number the FAA refers to as “relatively small.” Currently, the FAA has only given out about 300 licenses to fly drones capable of cruising at more than 400 feet in the air.
2. Matters of privacy are all about “reasonableness”
The Fourth Amendment to the U.S. Constitution guarantees our right against “unreasonable searches and seizures.” The key word here is “unreasonable” — and thanks to our rapidly changing technologies, its definition is in near-constant flux.
CRS researcher and legislative attorney Richard M. Thompson II, who authored the report on drones, explains in the report that “the reasonableness of drone surveillance [as considered by the courts] would likely be informed by location of the search, the sophistication of the technology used, and society’s conception of privacy in an age of rapid technological advancement.”
It’s this last part — “society’s conception of privacy” — that you should worry about on a daily basis, as it applies to the use of information gathered by everything from drones flying over our back yards to GPS capabilities in our smartphones to our Facebook profiles. Once society becomes generally “OK” with certain information becoming public, or becoming public in a certain way — once we think of these things as “reasonable — the Fourth Amendment protects us less.
3. The Fourth Amendment: It depends what the definition of “search” is
As with what can be considered “reasonable,” the definition of what constitutes a “search” under the Fourth Amendment is a slippery beast. The Fourth Amendment provides for little wiggle room when it comes to activities performed in your home, behind closed doors and curtained windows. (No searches without a warrant there — most of the time, anyway.) But as soon as you leave the confines of your house, things start getting more complicated — and things get even worse when you consider surveillance that uses planes and helicopters. Throw drones in the mix and, well, the fine line across which surveillance by the state becomes “search” gets downright knotty.
Thompson’s CRS report explains that a court reviewing the use of drones under the Fourth Amendment will have to consider past cases that involved “privacy in the home, privacy in public spaces, location tracking, manned aerial surveillance, those involving the national border,” and instances when warrants aren’t needed to perform a “routine” search (like searching a car at a U.S. border), to determine the definition of a “search.”
4. Drones will have the ability to see through walls and ceilings
Thanks to technology like the Xaver 800 from Camero, which uses electromagnetic radar to construct 3D images of hidden objects, law enforcement and military personnel can now “see” through walls. Combine this with laser radar and thermal imaging techniques, and our homes practically have glass walls, as far as the police are concerned. Thompson estimates that similar technology will eventually be outfitted on drones, allowing them to see through ceilings and walls. The question before the courts will be: Without a warrant, is that reasonable?
5. Drones could be outfitted with face recognition technology
In addition to seeing through our walls, Thompson writes that law enforcement organizations “might seek to outfit drones with facial recognition or soft biometric recognition, which can recognize and track individuals based on attributes such as height, age, gender, and skin color.”
Considering that the FBI is currently undertaking a $1 billion project to build out its face recognition capabilities, this one seems all but inevitable. However, as Thompson explains, the sophisticated nature of such technology may determine whether the use of face recognition technology on drones “is lawful under the Fourth Amendment.”
6. Aerial searches in manned aircraft are not against the Fourth Amendment — but drone surveillance may be different
While the Fourth Amendment provides strict protections for privacy inside the home, anywhere outside the home falls into other categories of protection. The first is “curtilage,” which is defined as the area surrounding a home (like a front or back yard). Areas outside of that are referred to as “open fields.” The Fourth Amendment protections apply differently for each of these categories; curtilage is often nearly as highly protected as inside the home, while open fields may not be protected at all.
That said, existing case law (precedent) determines that police may use airplanes and helicopters that fly within federal aviation guidelines to look in on citizens’ curtilage — even if it’s fenced in or otherwise hidden from public view — without a warrant. It is not yet clear whether drones would fall into the same category as planes and ‘copters, according to Thompson.
7. Long-term tracking is different from short-term tracking
In the recent Supreme Court case United States vs Jones, the Court ruled that the tracking of an individual using GPS for a long period of time (say, a month) constitutes a “search” under the Fourth Amendment due to how much information can be gathered about a person over an extended period, thus requiring a warrant to perform the tracking. But previous case law upheld law enforcement’s ability to track users outside their homes for a shorter period of time without the need for a warrant.
Now, because drones can stay in the sky for long periods of time — and, in the case of Lockheed Martin’s Stalker drone, possibly forever — they could be used to track people’s movements for extremely long periods of time. Because of this, the courts will have to decide whether the use of long-duration flight drones for surveillance purposes constitutes a search under the Fourth Amendment.
8. U.S. borders are a search free-for-all
As you may have gathered, reasonable expectations of privacy have a lot to do with where a person is. But the one place you should have zero expectation of privacy is near a U.S. border. Border agents already have the ability to search things like your car, without a warrant, within 25 miles of a U.S. border.
Because of the looser restrictions near U.S. borders, the use of drones is, and will be, extremely prevalent. And since the surveillance using drones “may be considered more passive” than surveillance agents on the ground, or in planes and helicopters, by the courts, explains Thompson, drones “may be even less likely to run afoul of Fourth Amendment requirements.” (Emphasis mine.)
9. Technology sophistication matters
Under the Fourth Amendment, all technology is not created equal. The use of gadgets that anyone can get their hands on (like binoculars) for surveillance purposes are more permissible by the courts than technology that is extremely sophisticated (like radar that can see through walls).
With this in mind, the courts will likely have to decide what types of technology can be attached to drones for surveillance use. Is a low-powered camera allowed while a high-powered camera isn’t? Should drones be outfitted with face recognition systems? It’s not yet clear — and it’s something that the courts (or Congress) must establish.
10. The more common drones become, the less privacy protections you may have
As with the public definition of “reasonable” under the Fourth Amendment, the public’s expectations of privacy with regards to certain technology changes with time. The more a technology is used, the more acceptable (read: reasonable) it is. Thompson points out that as drones become increasingly commonplace, the more the public will accept the use of drones for surveillance purposes, potentially changing which types of surveillance practices are and are not protected under the Fourth Amendment.
11. Americans are worried about drones
According to a study released in June by Monmouth University (pdf), 80 percent of Americans approve of using drones for search and rescue missions, while 67 percent believe drones should be used to “track down runaway criminals.”
And yet, 42 percent of respondents said they would be “very concerned” about their own privacy if drones were used by law enforcement. Twenty two percent would be “somewhat concerned,” and 16 percent would be “just a little concerned.” A full 15 percent said they would not be concerned at all.
Oh, and only 23 percent said they would feel comfortable with using drones to catch speeding motorists.
12. There are ways to fight back against drone privacy invasion now
The courts are not the only government body that can decide what is and is not allowed by drones. Congress can also take action, and it’s already begun to do that. Rep Austin Scott (R-GA) and Sen. Rand Paul (R-KY) recently introduced the Preserving Freedom from Unwarranted Surveillance Act of 2012 (H.R. 5925, S. 3287), which would require the federal government to gain a warrant based on probable cause before drones could be used for surveillance purposes. And Rep. Ted Poe’s (R-TX) Preserving American Privacy Act of 2012 (H.R. 6199) would also require law enforcement to obtain a warrant for drone surveillance, among other restrictions.
Thompson suggests that “Congress could also limit the admissibility of evidence in a criminal prosecution to situations where its acquisition was the purpose of the drone search.”
If you’re afraid of waiting to let the courts decide how drones can be used for surveillance — a decision that will come after the drones are already being used for that purpose — I suggest you look into vocally supporting some of these bills.
13. We’re just making this up as we go along
Valuable tidbits about the Fourth Amendment aside, the key takeaway from all this is that laws are nothing more than a man-made creation. In other words, they are made up. And as technology advances faster than our government can respond, those in charge of crafting the rules are forced to figure out all the implications on the fly — not just for drones, but for all emerging technologies. More important, our view of drone surveillance (or GPS tracking or Facebook data scraping) plays a major role in how the government will decide these issues for us. We would do well for ourselves to pay close attention.
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