Lawmakers move to limit domestic drones

Drones are coming to a police station near you, prompting lawmakers to craft legislation designed to limit what they see as the potential for a previously unthinkable level of Big Brother-style surveillance by the government.

Four states - Florida, Idaho, Montana and Virginia - have already passed laws to control the use of drones by law enforcement. The first three have barred police from using drones without a warrant in most cases; Virginia has barred their use by law enforcement (with exceptions) for two years. According to a tally by the American Civil Liberties Union, legislation to limit drone use has been proposed in 41 states and remains active in 32 states.

There is also a push to limit domestic drone use on a federal level. On Friday, the House Judiciary Committee subcommittee on Crime, Terrorism, Homeland Security and Investigations is holding a hearing called, "Eyes in the Sky: The Domestic Use of Unmanned Aerial Systems." It is the second congressional hearing on domestic drones this year; at the first, Judiciary Committee chairman Sen. Patrick Leahy, D-VT, warned that "the domestic use of drones to conduct surveillance and collect other information will have a broad and significant impact on the everyday lives of millions of Americans."

Three bills from the current Congress have been referred to the subcommittee for consideration. The first, called the Preserving American Privacy Act, would require a governmental entity operating a drone to minimize the collection or disclosure of identifying information. Another bill, the Preserving Freedom from Unwarranted Surveillance Act, would prevent government officials from using a drone to gather evidence or other information pertaining to criminal conduct without a warrant. A third would prohibit the use of drones to kill citizens of the United States within the United States.

On the Senate side, both Sen. Mark Udall, D-Colo., and Sen. Rand Paul, R-Ky., are preparing to introduce legislation. Paul's bill, which his office says will be released in the coming weeks, is a reintroduction of his "Preserving Freedom from Unwarranted Surveillance Act" from last year, which bars the use of drones by law enforcement without a warrant in most cases. The freshman senator gave the issue of domestic drone use national prominence when he filibustered over what he considered a lack of clarity from the White House over whether it had the authority to use drones to kill U.S. citizens on American soil with drones. (Attorney General Eric Holder eventually said the answer, when it came to Americans not engaged in combat, is no.)

It is an open question whether many of these laws are necessary. Catherine Crump, a lawyer with the American Civil Liberties Union, said the organization would like to see legislation on a federal and state level making clear that law enforcement cannot use drones without a warrant (except in emergency situations) because there is not yet case law on drones and "courts move very slowly."

But she acknowledges that the Fourth Amendment, which protects against unreasonable search and seizure, would seem to protect Americans from having lawmakers monitor them with a camera-enabled drone without cause.

"There are good reasons to believe that drones can't be used to peer into peoples' houses, or to take thermal imaging of those houses, unless law enforcement gets a warrant based on probable cause," she said. "Because people have a reasonable expectation of privacy against those forms of surveillance."

"Without a warrant, I think it's clear that if the police fly into a backyard to look into the window of a home, that's unconstitutional," adds John Villasenor, a fellow at the Brookings Institution and UCLA professor who is testifying at the Friday hearing. "The Fourth Amendment has served us well since 1791. It can continue to do so in a world where unmanned aircraft are widely used."

Law enforcement officials say that drones' primary value isn't for surveillance but rather for crime scene reconstruction and search and rescue missions. Drones, they say, offer a cheaper, safer and more effective alternative to helicopters and manned searchers. Benjamin Miller, who runs the drone program at the Mesa County Sherriff's Department in Colorado, said he has flown the department's two drones on about 45 missions without once conducting surveillance.

Citing the Fourth Amendment, Miller argued that specific drone laws are unnecessary. Drones, he said, should be treated no differently than guns or any other tool used by police.

"If you abuse it, you won't work here anymore, and you'll be subject to the criminal justice process," said Miller. "I don't think it's legitimate for the public to have any greater expectation of this than anything else."

Concerns about surveillance are not limited to law enforcement. The use of drones is expected to skyrocket if and when the Federal Aviation Administration meets a congressionally mandated deadline to integrate them into U.S. airspace by September 2015. (The FAA has granted waivers to more than 1,000 law enforcement or other public entities, including the Department of Homeland Security and NASA, to use drones in the meantime.) While commercial drone use is now illegal, the agency expects there to be 7,500 commercial drones alone operating domestically within five years.

The possibility that any American will be able to purchase a drone for personal use is likely to lead to circumstances in which the First Amendment right to free speech runs up against the Fourth Amendment's protections. For paparazzi, for example, drones mean the chance to take pictures from angles they could never reach themselves. 

"People have a right to take photographs in public. But that doesn't mean that drones aren't going to pose some tricky privacy issues," said Crump. She added: "I don't think most of us would want our neighbors to fly drones over our backyard while we're sunbathing there."

Still, said Villasenor, "There's a very good argument that someone who flies an unmanned aircraft into a backyard to look into a window is committing an invasion of privacy."

Michael Toscano, president of The Association for Unmanned Vehicle Systems International, a drone lobby group, said he is working to overcome negative impressions of drones fed by news coverage of overseas strikes as well as "years of television" and "misinformation" in public. Toscano, like many in the industry, objects to the use of the term "drone," opting instead for "Unmanned Aerial System," or UAS.

"It is a revolutionary-type technology, and that sometimes causes people to have a little bit of concern," he said, adding: "At first, people don't understand...how this will change their life in a very, very positive way."

Sen. Mark Udall, the Colorado Democrat now developing domestic drone legislation, said in a speech last week that the drone industry needs to overcome fears of "a sky full of drones watching their every move" and integrate "into the American psyche in a way that isn't threatening or scary." In February, Seattle's mayor ordered the police department there to end its plans to use drones in the wake of protests from privacy advocates.

Udall called on the industry to be "up front" in addressing legitimate legal and privacy concerns and said he was avoiding the word "drone" because of the stigma associated with it.

"Most Americans don't think about monitoring crops, search-and-rescue operations or the numerous other civilian uses of this technology," said Udall. "They think of Hellfire missiles and the headline-grabbing work our government is doing overseas."