Unchecked government drones? Not over my backyard

On last Thursday, the Federal Aviation Administration gave Amazon the green light to begin testing drones

While you aren’t likely to be getting your Amazon order delivered by drone anytime soon, as the approval is limited to research and testing, the fact remains that this technology is already part of our lives. Drones are already helping the federal government observe and track us in new and often troubling ways, without our knowledge or consent. 

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President Obama issued a presidential memorandum in February offering some limits on how the government uses this technology. The memo requires all federal agencies to publicly account for how they use drones, implements limited privacy and civil liberties protections, and begins a process to develop privacy standards for private drone use. It’s a start, but much more needs to be done to protect our privacy rights.

Right now, the federal government doesn’t have a clear picture of how it’s using drone technology across agencies and departments, nor does it have clear, consistent standards in place to protect Americans’ privacy. 

For example, at a hearing last June, then-FBI Director Robert Mueller III acknowledged that the bureau was using drones for surveillance. When asked about policy and procedures to regulate this use, he confessed that the agency was only in the initial stages of creating them. If the federal government doesn’t have clear rules in place for drone use, how can citizens be sure that their privacy is being protected?  

Hopefully this will begin to change with the new presidential memorandum. Mandating that agencies describe their drone use is a necessary first step, and the Obama administration deserves credit for taking it, but this is not a sufficient protection for Americans’ privacy. Given the potential invasiveness of this technology and how frequently it is used, letting government agencies set their own drone use guidelines, is a recipe for failure.  

Instead, Obama should require all federal agencies to meet strong minimum privacy standards, and close the following privacy loopholes in his existing guidance.

First and foremost, absent an emergency, law enforcement agencies should only use drones to conduct surveillance or gather information with a warrant. This is not a rule that should be left to the discretion of individual agencies. Second, the federal government should restrict the purposes for which drones can be used by agencies. The guidelines allow drones to be used for any “authorized purpose,” which is not strictly defined. Drones should only be used in emergencies, by law enforcement with a warrant, or in situations where they are unlikely to substantially intrude on people’s privacy, such as environmental surveys.  

Third, information collected by drones for one purpose shouldn’t be used for other purposes. In other words, if the government uses drones to help identify forest fires, this information shouldn’t be passed on to the FBI for law enforcement. The guidelines should make clear that information can only be shared between agencies if it specifically relates to the original purpose for which it was collected. 

Finally, the government should put in place more stringent restrictions on the retention and use of information collected by drones. Under the president’s memorandum, information collected by drones must be destroyed within 180 days, unless it is necessary to the mission of the agency.  Safeguards should be put in place to ensure that this exception is not used to allow the government to store vast amounts of information on citizens.   

The Obama administration is not the first to grapple with these issues. More than a dozen states have already passed laws placing limits on government drone use. The federal government should follow the lead of states, like Illinois and Montana, which now require that police receive a warrant from a judge before deploying drones. This key constitutional protection would go a long way toward reassuring the public that drones are being used responsibly. 

Guliani is with the American Civil Liberties Union’s Washington Legislative Office.

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