Trevor Timm / Electronic Frontier Foundation & Richard M. Thompson II / Congressional Research Service – 2012-11-23 21:59:09
Homeland Security Wants to More Than Double Its Predator Drone Fleet Inside the US, Despite Safety and Privacy Concerns
Trevor Timm / Electronic Frontier Foundation
(November 20, 2012) — Despite renewed criticism from both parties in Congress that domestic drones pose a privacy danger to US citizens — and a report from its own Inspector General recommending to stop buying them — the Department of Homeland Security (DHS) has indicated it wants to more than double its fleet of Predator drones used to fly surveillance missions inside the United States.
Yesterday, California Watch reported that DHS signed a contract that could be worth as much as $443 million with General Atomics for the purchase up to fourteen additional Predator drones to fly near the border of Mexico and Canada. Congress would still need to appropriate the funds, but if they did, DHS’ drone fleet woud increase to twenty-four.
While many people may think the US only flies Predator drones overseas, DHS has already spent $250 million over the last six years on ten surveillance Predators of its own. Customs and Border Protection (CBP) — a division of DHS — uses the unmanned drones inside the US to patrol the borders with surveillance equipment like video cameras, infrared cameras, heat sensors, and radar.
They say the drones are vital in the fight to stop illegal immigrants, but as EFF reported in June, the DHS Inspector General issued a report faulting DHS for wasting time, money, and resources using drones that were ineffective and lacked oversight.
The Inspector General chastised the agency for buying two drones last year despite knowing these problems and recommended they cease buying them until the problems could be fixed.
Perhaps worse, DHS is also flying Predator drone missions on behalf of a diverse group of local, state, and federal law enforcement agencies for missions beyond immigration issues. We know they have lent the drones out to the county sheriff’s department in North Dakota and the Texas Rangers, among others, but unfortunately, we don’t know the full extent DHS lending program. DHS, as is their custom, is keeping that information secret.
In response, last month EFF sued DHS under the Freedom of Information Act demanding answers about how and why it loans out its Predator drones to other law enforcement agencies across the country. EFF’s lawsuit asks for the records and logs of CBP drone flights conducted in conjunction with other agencies.
These drones pose a multitude of privacy concerns to all Americans, as the Congressional Research Service (Congress’ non-partisan research arm) detailed in this comprehensive report on domestic drones and the Fourth Amendment.
The report explains drones can be equipped with, among other capabilities, facial recognition technology, fake cell phone towers to intercept phone calls, texts and GPS locations, and in a few years, will even be able to see through walls.
Despite these concerns, DHS has not publicly issued any privacy rules to make sure drones do not spy on US residents in border states going about their daily lives. In fact, at a Congressional hearing on the subject, DHS refused to send anyone to testify, leading both parties to criticize their absence.
This is even more troubling given DHS is also leading the push to get local police agencies to purchase their own drones by handing out $4 million to agencies to “facilitate and accelerate” their use. The FAA estimates as many as 30,000 drones could be flying over US territory by the end of the decade.
The booming drone industry, which has announced a PR campaign in an attempt tamp down the public’s privacy concerns, is quick to point out that these police drones — which cost anywhere from under $100,000 to $1 million — are smaller than Predators and do not have the same flight time, so police would not be able to surveil Americans for hours or days at a time like Predator drones could. Yet as the technology advances rapidly and becomes cheaper every year, smaller drones will soon be able to fly for an extended time period as well.
For example, Lockhead Martin has developed a drone that weighs only 13.2 pounds, well within the FAA’s domestic weight limits, and can be recharged by a laser on the ground, allowing it remain in the air indefinitely.
Several members of Congress have commendably introduced bills that would protect the privacy of Americans and increase transparency surrounding their use. These members, who voted for increased drone use in February but have recently expressed second thoughts, should call DHS representatives before Congress to explain their position.
The American people deserve answers about to whom Homeland Security is loaning its drones, how DHS plans on protecting Americans’ privacy, and why they even need any more, given they are misusing the drones they already have.
Drones in Domestic Surveillance Operations:
Fourth Amendment Implications and Legislative Responses (Summary)
Richard M. Thompson II, Legislative Attorney / Congressional Research Service
Click here for full report
WASHINGTON, DC (September 6, 2012) — The prospect of drone use inside the United States raises far-reaching issues concerning the extent of government surveillance authority, the value of privacy in the digital age, and the role of Congress in reconciling these issues.
Drones, or unmanned aerial vehicles (UAVs), are aircraft that can fly without an onboard human operator. An unmanned aircraft system (UAS) is the entire system, including the aircraft, digital network, and personnel on the ground.
Drones can fly either by remote control or on a predetermined flight path; can be as small as an insect and as large as a traditional jet; can be produced more cheaply than traditional aircraft; and can keep operators out of harm’s way.
These unmanned aircraft are most commonly known for their operations overseas in tracking down and killing suspected members of Al Qaeda and related organizations. In addition to these missions abroad, drones are being considered for use in domestic surveillance operations, which might include in furtherance of homeland security, crime fighting, disaster relief, immigration control, and environmental monitoring.
Although relatively few drones are currently flown over US soil, the Federal Aviation Administration (FAA) predicts that 30,000 drones will fill the nation’s skies in less than 20 years.
Congress has played a large role in this expansion. In February 2012, Congress enacted the FAA Modernization and Reform Act (P.L. 112-95), which calls for the FAA to accelerate the integration of unmanned aircraft into the national airspace system by 2015.
However, some Members of Congress and the public fear there are insufficient safeguards in place to ensure that drones are not used to spy on American citizens and unduly infringe upon their fundamental privacy. These observers caution that the FAA is primarily charged with ensuring air traffic safety, and is not adequately prepared to handle the issues of privacy and civil liberties raised by drone use.
This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness.
A reviewing court’s determination of the reasonableness of drone surveillance 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.
While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places and perhaps even less in areas immediately outside the home, such as in driveways or backyards.
Concomitantly, as technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people’s expectations of privacy evolve.
In the 112th Congress, several measures have been introduced that would restrict the use of drones at home. Senator Rand Paul and Representative Austin Scott introduced the Preserving Freedom from Unwarranted Surveillance Act of 2012 (S. 3287, H.R. 5925), which would require law enforcement to obtain a warrant before using drones for domestic surveillance, subject to several exceptions.
Similarly, Representative Ted Poe’s Preserving American Privacy Act of 2012 (H.R. 6199) would permit law enforcement to conduct drone surveillance pursuant to a warrant, but only in investigation of a felony.
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