While much recent attention has focused on the use of unmanned drones in targeting purported terrorists in foreign countries, their domestic use was given impetus with the FAA Modernization and Reform Act of 2012, which provided funding through 2015 for development and integration of drone use within U.S. territorial airspace. Current law limits their use to certain airspace, but the Customs and Border Control Agency has “loaned” drones to local law enforcement agencies. We have had at least one instance of an armed drone used to kill an American citizen in a foreign country. It is certainly conceivable that an armed drone may find its way to domestic use.
There are concerns over due process and the lack of transparent and enforceable guidelines. They go beyond what have sadly become almost “commonplace” concerns over privacy. Earlier this year, a North Dakota state court refused to dismiss charges against a defendant where local police reportedly borrowed a predator drone from Homeland Security to ensure that he and his family did not leave their farm and remained unarmed when arrested.
In recent months, both Democrats and Republicans have introduced legislation regarding limitations on drone surveillance, including standards and warrant requirements.
The Federal Aviation Administration estimates that 30,000 commercial and governmental drones will be operating in American airspace over the next 20 years, ranging in size from “hummingbirds” to the Eitan, the size of a Boeing 737. While the Supreme Court has ruled that certain aerial surveillance requires warrants, the current status of drone usage does not.
Perhaps one of the more startling possibilities comes from a University of Texas at Austin team in its Radionavigation Laboratory. It reported that a drone could, in essence, be “hijacked” for relatively nominal funds and with certain technological knowhow, and turned into a weapon. The team used “spoofing technology” that showed how an unauthorized person could take control. Issues have been raised over the use of drones with, perhaps, nonlethal “weapons” for crowd control. The imagination boggles. The American Civil Liberties Union, in a December 2011 report, worries about “mission creep.”
Last month, legislation was introduced in Florida to ban the use of unmanned drones for information or evidence-gathering, but otherwise allowing their use to fight terrorism. That distinction seems to create new ambiguities. Whether it would be pre-empted by federal aviation law is another issue.
It may be surprising to many that domestic use of drones has not only been increasing, but has legislative blessing. We take no position among the competing bills currently before the Congress. If the past is prologue, unfortunately, they may wither on the vine. The domestic use of drones is an important legal and policy issue, and the line between criminal and terrorist is often ambiguous. This is not an area that can wait for the common law to develop. There are serious Fourth Amendment concerns, as well as an increased risk of drones being armed and turned against their handlers.
This issue warrants full, transparent discussion and debate, across party lines. The ACLU report, “Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft,” urges restrictions on usage and image retention, as well as transparency of procedures for use of aerial surveillance, and clear auditing and tracking protocols. We think its report, and the current proposed bills, should be taken seriously. If Congress won’t act, then perhaps state legislation is appropriate to force the test case. The train is well on its way out of the station. Domestic drone surveillance goes far beyond current capabilities and experience. It must be dealt with. If Congress won’t act, New Jersey should.