Homeland Security: Let's be clear about aerial drone privacy

A privacy review, intended to "clarify any misunderstandings that exist" about the controversial unmanned aircraft, comes as concern grows about limited restraints on police use of drones.

by Declan McCullagh February 22, 2013 8:59 AM PST

The Draganflyer X4-P can carry still and video cameras or thermal imaging sensors.(Credit: Dragan)

A Homeland Security office says it plans to review the privacy implications of using drones to monitor U.S. citizens.

The department's Office for Civil Rights and Civil Liberties has created a working group that will "clarify any misunderstandings that exist" about DHS's drone program, as well as make an effort to "mitigate and address any outstanding" privacy concerns.

Tamara Kessler from DHS's civil rights office and Jonathan Cantor, DHS acting chief privacy officer, sent the memo (PDF) describing the review to Secretary Janet Napolitano last September. It was released this week.

It isn't clear how rigorous the review will be. The department's privacy office lacks key investigative powers, and last fall it blessed the controversial practice of monitoring social media as perfectly acceptable. In 2006, however, it did slap down the Transportation Security Agency for "privacy missteps" when collecting details on millions of air travelers.

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Domestic police use of drones to monitor U.S. citizens raises privacy concerns because unmanned aerial vehicles, or UAVs, are far cheaper than manned helicopters or fixed-wing planes and can stay aloft far longer. That means law enforcement could monitor Americans in their backyards, cars, or at political gatherings in ways that would not have been possible before.

While there are no federal regulations in place limiting how police agencies may use drones -- the ACLU has suggested they should be used only with warrants and be unarmed -- some states are currently considering restrictions. A bill that President Obama signed into law a year ago accelerated their use by requiring the Federal Aviation Administration to "safely accelerate" the deployment of drones.

Last week, Rep. Zoe Lofgren (D-Calif.) and Ted Poe (R-Texas) introduced legislation called the Preserving American Privacy Act that would establish safeguards on police use of drones, including prohibiting them from being equipped with firearms or explosives. The FAA said last week that it will "address privacy-related data collection" by drone operators at its six test ranges; the Electronic Privacy Information Center warns (PDF) that "there are substantial legal and constitutional issues involved."

Reps. Zoe Lofgren and Ted Poe Introduce Bipartisan Bill to Protect Americans’ Privacy Rights from Domestic Drones
WASHINGTON, D.C. - Reps. Zoe Lofgren (D-CA) and Ted Poe (R-TX) have introduced legislation, H.R. 637, The Preserving American Privacy Act, to establish due process protections for Americans against government-operated unmanned aircraft systems (UAS) in U.S. airspace. The bipartisan legislation would also forbid law enforcement and private UAS from being armed with firearms or explosives while operating within U.S. airspace.
"The expanded use of drones on U.S. soil raises serious Constitutional and civil liberties issues that Congress needs to address," Rep. Lofgren said. "These devices should be used in a safe, open, and responsible manner. This bill would ensure that drones follow strict guidelines to protect Americans' privacy while still realizing their practical applications for science, border security, public safety, and commercial development."
"As we enter this uncharted world of drone technology, Congress must be proactive and establish boundaries for drone use that safeguard the Constitutional rights of Americans," Rep. Poe said. "Individuals are rightfully concerned that these new eyes in the sky may threaten their privacy. It is the obligation of Congress to ensure that this does not happen. Just because Big Brother can look into someone's backyard doesn't mean it should. Technology may change, but the Constitution does not."
Specific provisions governing the use of UAS in the Preserving American Privacy Act include:

1. Government-operated UAS must obtain a warrant to collect information that can identify individuals in a private area;
2. Government-operated UAS must obtain a court order and provide public notice beforehand to collect information that can identify individuals in defined public areas;
3. The warrant and court order requirements are subject to exceptions for emergencies, border security, and consent;
4. Private UAS cannot capture visual images or sound recordings of individuals engaging in personal activities in certain circumstances in which the individual has a reasonable expectation of privacy;
5. State laws on the use of UAS in the airspace of the state are not preempted;
6. Private and law enforcement UAS cannot use or operate UAS equipped with firearms or explosives in U.S. airspace.

Click here for a section-by-section of the bill.

Among federal government agencies, Homeland Security's Customs and Border Protection is one of the most significant domestic operators of drones. It flies the MQ-9 Predator B drone (PDF) "in support of law enforcement and homeland security missions at the nation's borders."

Some legal scholars and civil libertarians say they're worried that the Obama administration has not explicitly ruled out the possibility of assassinating U.S. citizens inside the country using armed drones. In a written response to the Senate (PDF) this month, John Brennan, Obama's nominee for CIA director, declined to answer this question: "Could the administration carry out drone strikes inside the United States?"