Congress gives green light to some 30,000 drones over U.S. skies by 2020

Congress passed the FAA Reauthorization Act, which would pave the way for government to fly drones in U.S. airspace. The Washington Times reports that Obama is expected to sign the bill which would be used by law enforcement and other government agencies. It orders the Federal Aviation Administration (FAA) to develop, by 2015, regulations for licensing and testing the drones.

A large quantity of certificates have been distributed to law enforcement and other government officials. Last year, 313 certificates were already issued.  An apparent push to get the drone program up and running quickly is underway as the Department of Transportation has said that it will streamline the certification process and the legislation will be prioritized.

Drones have already been used in some areas of the country. For instance, in North Dakota an all-clear was delivered to the Nelson County Sheriff and SWAT team, from a Predator B drone, which had been spying on cattle rustlers, on June 23, 2011.

Drones have also been used on the U.S. side of the U.S./Mexican border for local, state and federal law enforcement operations.

The Los AngelesTimes reports that North Dakota law enforcement has been quoted as stating that they have used two unarmed Predators based at Grand Forks Air Force Base to fly at least two dozen surveillance flights since June.  Additionally, state and local law enforcement have been using drones for routine law enforcement operations including the pursuit of drug dealers and traffic violators.

The use of drones in U.S. airspace raises serious concerns about privacy. Steven Aftergood, of the Project on Government Secrecy at the Federation of American Scientists is quoted as saying: “There are serious policy questions on the horizon about privacy and surveillance, by both government agencies and commercial entities.”

The Electronic Frontier Foundation (EFF) asserts that using drones domestically, in a non-military function raises significant privacy concerns.  Many drones have the capacity to operate unseen, which would permit the government to monitor citizens without their knowledge.  The agency estimates that as many as 30,000 drones could be patrolling the air by 2020.

As is often the case with Fourth Amendment issues, EFF points out that it is unclear as to which laws may protect against this.   Historically, the Supreme Court has tended to rule against privacy in the public arena, including corporate facilities and backyards.  The Supreme Court has also held that the Fourth Amendment protections from unreasonable searches and seizures may not apply when it’s not a human that is doing the searching. None of these cases bodes well for any future review of the privacy implications of drone surveillance,” EFF explains.

EFF highlights a couple of reasons as to why the Supreme Court could rule on the side of privacy advocates:

  • In a 2001 case called Kyllo v. United States, the Supreme Court held the warrantless search of a home conducted from outside the home using thermal imaging violated the Fourth Amendment. The Court held that,  “in the sanctity of the home, all details are intimate details; ”it didn’t matter that the officers did not need to enter the home to see them
  • United States v. Jones, argued before the Supreme Court this term, could also have ramifications for drones. The D.C. Circuit Court of Appeals opinion in this case held that warrantless GPS-enabled 24/7 surveillance of a car violated the Fourth Amendment, noting,  “When it comes to privacy . . . the whole may be more revealing than the parts.”  Though the outcome of the case at the Supreme Court is far from clear, the Court did seem surprised during oral argument that, under the government’s theory of the case, the justices themselves could be tracked without a warrant and without probable cause. Drones that use heat sensors to see into the home and that can track one or many people around the clock wherever they go are not much different from the technologies at issue in Kyllo and Jones.

EFF expects that a court will rule on this issue in the near future. They also point out that “the market for unmanned aircraft in the United States is expanding rapidly, and companies, public entities, and research institutions are developing newer, faster, stealthier, and more sophisticated drones every year.”

As it is, EFF has filed a lawsuit against the U.S. Department of Transportation (DOT) which seeks data on certifications and authorizations the agency has issued for the operation of unmanned aircraft, also known as drones.

Candice Lanier