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Domestic Unmanned Aerial Vehicles (UAVs) and Drones

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  • Senate to Hold Homeland Security Oversight Hearing: The Senate Judiciary Committee will hold an oversight hearing for the Department of Homeland Security. Secretary Jeh Johnson will testify. EPIC has objected to many of the agency's mass surveillance practices, including the secret profiling of American air travelers, the use of drones for aerial surveillance, the amassing of information on Americans into "fusion centers", and the collection of biometric identifiers. EPIC has also warned that the DHS Chief Privacy Officer has failed to safeguard privacy, a legal obligation for that office. According to the DHS, the number of privacy complaints increased in 2013. EPIC has several Freedom of Information Act case pending against the DHS. In an earlier case, EPIC determined the DHS was monitoring social media and news organizations for criticisms of the agency. Another EPIC case led to the removal of the x-ray backscatter devices from US airports. For more information, see EPIC v. DHS - Social Media Monitoring and EPIC v. DHS (Suspension of Body Scanner Program). (Jun. 10, 2014)
  • Press Groups Challenge Ban on Commercial Drones: Over a dozen news media organizations filed an amicus brief opposing the Federal Aviation Administration's ban on commercial drones. The ban was suspended earlier this year by an administrative judge. The news organizations argue that the ban violates the media’s First Amendment right of the press, however the rule concerns public safety not the content of speech or the identity of the speaker. EPIC, joined by over 100 organizations, previously petitioned the Federal Administration Agency to address the privacy issues raised by drones and the Agency agreed to do so. In response to a request for public comments last year, EPIC urged the Federal Aviation Administration to mandate minimum privacy standards for drone operators. For more information, see EPIC: Domestic Drones. (May. 13, 2014)
  • EPIC Sues Army for Information About DC Surveillance Blimps: EPIC has filed a Freedom of Information Act lawsuit against the Department of the Army for documents about JLENS, a sophisticated surveillance system that will be deployed over Washington, DC during the next three years. JLENS is comprised of two 250' blimps. One blimp conducts aerial and ground surveillance over a 340-mile range, while the other has targeting capability including HELLFIRE missiles. The JLENS was originally deployed in Iraq. In the FOIA request, EPIC asked the Army for technical specifications as well as any policies limiting domestic surveillance. EPIC has urged Congress to establish privacy safeguards for aerial drones. For more information, see EPIC: EPIC v. Army - Surveillance Blimps, EPIC: Drones - Unmanned Aerial Vehicles, and EPIC Spotlight on Surveillance (2005) - "Unmanned Planes Offer New Opportunities for Clandestine Government Tracking." (May. 7, 2014)
  • Pew Survey Finds Opposition to Drones, Robots, and Google Glass: A national survey conducted by Pew Research Center and Smithsonian Magazine find the American public optimistic about revolutions in health science and transportation, and concerned about technologies of surveillance. According to the survey, 63% of Americans think it would be a change for the worse if "personal and commercial drones are given permission to fly through most U.S. airspace," while 22% think it would be a change for the better. And 65% expressed concern about increased dependence on robots. Similarly, 53% of Americans think it would be a change for the worse if most people wear implants or other devices that constantly show them information about the world around them. Women are especially wary of a future in which these devices are widespread. Google Glass, an example of such technology, has come under scrutiny from Data Protection authorities as well as Congress. EPIC, joined by 100 other organizations and experts, petitioned the Federal Aviation Administration to address public concerns about privacy and drones. For more information, see EPIC: Google Glass and Privacy and EPIC: Domestic Drones. (Apr. 21, 2014)
  • Federal Judge Rules Commercial Drones Legal: A federal judge has ruled that commercial drones are legal, stating that the Federal Aviation Administration has not issued an enforceable regulatory rule that governs commercial drone operation. The FAA plans to appeal the decision. In 2012, Congress told the Agency to implement a plan to integrate drones into the National Airspace by 2015. Shortly after, EPIC joined by over 100 other organizations, experts, and members of the public petitioned the FAA to address privacy as part of the integration. As a result, the Agency published a notice with proposed privacy requirements for drone operators. EPIC submitted comments in response to the notice, urging the Agency to mandate minimum privacy standards for drone operators. After considering numerous public comments on the privacy impact of aerial drones, the FAA proposed a regulation that requires test site operators to develop privacy policies but does not require any specific baseline privacy protections. Several states have passed drone privacy laws and bills are also pending in Congress. For more information, see EPIC: Domestic Drones. (Mar. 10, 2014)
  • Senate Commerce Committee Considers Rules for Domestic Drones: The Senate Committee on Commerce, Science, and Transportation held a hearing on "the Future of Unmanned Aviation in the U.S. Economy: Safety and Privacy Considerations." Senator Diane Feinstein noted the threat that drones pose to both privacy and safety, and described how a drone once flew outside her home during a demonstration. Later in the hearing, Senator Ed Markey, who held up an AR Parrot Drone during the hearing, has written legislation to safeguard privacy. And Senator Cory Booker said that drones put him "between my Star Trek aspirations and my Terminator fears." The Committee heard testimony from FAA Administrator Michael Huerta. The FAA is responsible for integrating drones into the U.S. domestic airspace by 2015. EPIC had petitioned the FAA to implement privacy rules for drones. The FAA responded to EPIC's petition and has required, as an interim step, each of the six selected test sites for drone deployment to establish a public privacy policy. For more information, see EPIC: Domestic Unmanned Aerial Vehicles and Drones. (Jan. 17, 2014)
  • Department of Defense Proposes Autonomous Drones, Expanded Surveillance Mission: A new Department of Defense report "Unmanned Systems Integrated Roadmap" sets out "a technological vision for the next 25 years" of drone deployment. The DOD report suggests that budgets cuts are increasing the need for autonomous drones with onboard intelligence. One documentary describes the role of the the Department of Defense developing sophisticated surveillance technologies. The new DOD report states that surveillance is one of the primary purposes for pursuing drone technology, particularly for "surveillance missions that involve prolonged observation." An EPIC FOIA request revealed that domestic drones deployed by the Department of Homeland Security can be deployed with the ability to intercept electronic communications and to recognize individuals on the ground. EPIC has recommended privacy safeguards to limit drone surveillance in the United States. For more information, see EPIC: Domestic Unmanned Aerial Vehicles and Drones. (Jan. 7, 2014)
  • FAA Releases Drone Roadmap, Privacy Not Required for Test Sites: In a press release, the Federal Aviation Administration announced the "roadmap" for the integration of drones into domestic airspace. After considering numerous public comments on the privacy impact of aerial drones, the FAA proposed a regulation that requires test site operators to develop privacy policies but does not require any specific baseline privacy protections. The FAA rulemaking came about in response to an extensive petition submitted by EPIC, broadly supported by civil liberties organizations and the general public. EPIC urged the agency to require adherence to the Fair Information Practices, disclosure of data collection and minimization practices, and independent audits. For more information, see EPIC: Domestic Unmanned Aerial Vehicles (UAVs) and Drones. (Nov. 11, 2013)
  • Senator Rand Paul Seeks Answers About FBI's Domestic Drone Use: Senator Rand Paul issued a letter to FBI Director Robert Mueller seeking answers about the FBI's domestic use of drones. In a Senate Judiciary Committee hearing on FBI oversight, Director Mueller admitted that the FBI uses drones for domestic surveillance. Mueller also stated there were no guidelines in place to regulate the FBIs use of drones and protect the privacy of Americans. EPIC petitioned the Federal Aviation Administration last year to conduct a public rulemaking to address the threat to privacy and civil liberties the domestic use of drones pose. EPIC also petitioned the Bureau of Customs and Border Protection this year to establish privacy regulations for its use of drones. For more information, see EPIC: Domestic Unmanned Aerial Vehicles (UAVs) and Drones. (Jun. 21, 2013)
  • Amendment to Immigration Bill Seeks to Limit Drone Surveillance on Border: The Senate Judiciary Committee has approved an Amendment to the immigration bill to limit the range of drones surveillance in the United States. The immigration bill grants the Bureau of Customs and Border Protection authority to operate surveillance drones continuously within the border region. Senator Dianne Feinstein's (D-CA) Amendment reduces the patrol area of surveillance drones from 100 miles around the border to 25 miles. More than two-thirds of the US population lives within 100 miles of the border. In February 2013, EPIC petitioned the Bureau of Customs and Border Protection to suspend the border drone surveillance program pending the establishment of concrete privacy regulations. The petition followed the production of documents to EPIC under the Freedom of Information Act demonstrating that the border drones had the ability to intercept electronic communications and identify human targets. For more information, see EPIC: Domestic Unmanned Aerial Vehicles (UAVs) and Drones. (May. 15, 2013)

Background

A "drone," or "unmanned aircraft," is an aerial vehicle designed to be used without a human pilot onboard. Drones can be remote controlled or purely automated. The history of Drones shows peaks and valleys in their development, with most advances occurring during times of war. Drones gained notoriety during their use in the post-9/11 armed conflicts in the Middle East. The United States government use drones to conduct detailed surveillance on countries such as Afghanistan, Iraq, and Iran, as well as to drop targeted missiles. In early 2007, more than 700 drones were being utilized in Iraq alone.

Due to the heights at which drones can fly, they are often beyond the range of sight for most people. In addition, drones can also be designed to be very small and maneuverable. This means drone surveillance often occurs without the knowledge of the individual being monitored.

Aeriel surveillance of drones within the United States raises significant privacy issues. These vehicles can gather detailed information on individuals.

Requirements to Operate a Drone Domestically

In the United States, the Federal Aviation Administration (FAA), a component of the Department of Trasnportation, is the agency responsible with licensing drones for domestic use. The FAA is charged with promulgating minimum standards for air safety in the United States National Air Space.

On September 16, 2005, the FAA issued guidelines on the domestic use of drones. The FAA then released a policy document concerning the operation of drone aircraft on February 13, 2007. Between the two documents, the requirements to institute the use of drone aircraft in the United States are made clear. These requirements were further elaborated on in a fact sheet on December 1, 2010.

The current requirements for a drone to be operated in U.S. are largely perfunctory, and focus mainly on the safety of the aircraft itself. Before a drone can be deployed in the United States, the drone must prove to be airworthy, and be granted either an FAA certification or (for drones operated by the government only) an airworthiness statement from the Department of Defense. Recreational operators of unmanned aircraft (used under 400 feet) are not required to comply with this requirement, though they are held to a standard of "good judgment."

For now, commercial drones may only be used under an "experimental" designation, which is accompanied by operational limitations. Government drones may operate more freely, though the government must obtain a Certificate of Waiver or Authorization (COA) in order to operate a drone aircraft. The guidelines provide that an application for a COA "must include a hazard analysis, risk assessment, and other appropriate documentation that support the determination that injury to persons or property is extremely improbable."

The FAA is currently evaluating test sites in the United States to evaluate the safety impact of widespread drone deployment.

Drones in the United States

Since 2005, the FAA has issued 78 certificates to commercial drones. The FAA has had to increase staffing in order to keep up with the mounting demand for government licenses. In late 2010, there were 273 active government licenses, nearly 100 more than the previous year. Reports in 2012 demonstrate that the FAA has issued more than 300 drone licenses. Only minimal information has been released on the nature and function of these drones.

Many law enforcement offices in the United States have purchased drones, including Montgomery, Texas, Seattle, Washington, and Gadsden, Alabama. The Governor of Virginia said in 2012 that he thought it would be "great" to have drones flying over his State. The Miami-Dade Police Department in Florida used Federal grant money to purchase a small drone vehicle. Reports dating back to 2008 explain that Miami was seeking to use a small drone known as a Micro-Air Vehicle, "to gather real time information in situations which may be too dangerous for officers." However, police have admitted that the drone can be used to look into houses. As of December 2010, the FAA was reporting that they were cooperating with urban police departments in Houston and Miami on test programs involving unmanned aircraft. One drone manufacturer advertises on its webpage that police offices that want to own a drone should seek funding from the Department of Homeland Security.

Some of these government licenses belong to the Bureau of Customs and Border Protection (CBP). CBP is a component of the Department of Homeland Security and has a mission that includes "keeping terrorists and weapons out of the United States." Drones have been used by CBP to patrol of United States borders since 2005. As of June 2012, CBP owned 10 drones. In December 2011, the CBP made headlines when reporters discovered that the agency's drones were being used to assist local law enforcement in North Dakota without receiving prior approval from the FAA or any other agency. Some reports indicate that this is a general practice.

Technical Capabilities

Surveillance drones are equipped with sophisticated imaging technology that provides the ability to obtain detailed photographs of terrain, people, homes, and even small objects.

Gigapixel cameras used to outfit drones are among the highest definition cameras available, and can "provide real-time video streams at a rate of 10 frames a second." On some drones, operators can track up to 65 different targets across a distance of 65 square miles. Drones may also carry infrared cameras, heat sensors, GPS, sensors that detect movement, and automated license plate readers. In the near future these cameras may include facial recognition technology that would make it possible to remotely identify individuals in parks, schools, and at political gatherings.

Drones present a unique threat to privacy. Drones are designed to undertake constant, persistent surveillance to a degree that former methods of video surveillance were unable to achieve. "By virtue of their design, their size, and how high they can fly, [drones] can operate undetected in urban and rural environments."

The increased use of drones poses an ongoing threat to every person residing within the United States. Companies are developing "paparazzi drones" in order to follow and photograph celebrities. Private detectives are starting to use drones to track their targets. Google, inc. has deployed street-level drones in other countries to supplement the images of Street View. Criminals and others may use drones for purposes of stalking and harassment.

The consequences of increased government surveillance through the use of drones are even more troubling. The ability to link facial recognition capabilities on drone cameras to the FBI's Next Generation Identification database or DHS' IDENT database, two of the largest collections of biometric data in the world, increases the First Amendment risks for would-be political dissidents. In addition, the use of drones implicates significant Fourth Amendment interests and well established common law privacy rights. With special capabilities and enhanced equipment, drones are able to conduct far-more detailed surveillance, obtaining high-resolution picture and video, peering inside high-level windows, and through solid barriers, such as fences, trees, and even walls.

Privacy Issues

The US Supreme Court has held that individuals do not generally have Fourth Amendment rights with respect to aerial surveillance because of the ability that anyone might have to observe what could be viewed from the air. Of course, individuals do not operate drone vehicles with the capabilities of the US government. Also, some state courts have reached different conclusions about the privacy issues associated with aerial surveillance.

In other cases where advanced technologies have allowed increasingly intrusive Government surveillance, courts have adjusted Fourth Amendment doctrine to account for the effect of technological change on the reasonable expectation of privacy. In 2001, the Supreme Court ruled in Kyllo v. US that the use of a device that is not in "general public use" is a search even if it does not physically invade the home. In 2010, the D.C. Circuit Court required the Department of Homeland Security to undertake a new APA rulemaking when the Agency sought to implement Whole Body Imaging technology in the place of metal detectors as primary screening tools at U.S. airports. In 2012, the Supreme Court ruled in US v. Jones that the attachment of a GPS device to a car with the intent of gathering information was a "search" under the Fourth Amendment. The Jones decision marks a significant change from the previous doctrine, based on US v. Knotts, that an individual has no reasonable expectation of privacy in their location on public roads.

Drone surveillance also implicates public safety issues as the drones operate in airspace that may also be used by commercial and private aircraft. For this reason, federal agencies should regulate and control the proliferation of drone surveillance.

The House of Representatives approved an amendment to the National Defense Authorization Act of 2013 to prohibit information collected by Department of Defense drones without a warrant from being used as evidence in court. In June 2012, identical bills were introduced in the House and the Senate to require a warrant before drones could be used for most instances of criminal surveillance. Other bills also discuss the use of drones in the United States.

EPIC's Interest

EPIC has a long history defending against intrusive surveillance programs.

In 2008, EPIC launched Observing Surveillance, a project that documented the surge in the number of video cameras placed in DC's public spaces. EPIC's Executive Director, Marc Rotenberg, appeared before the DC City Council to support efforts to suspend an expensive and invasive system of 5,200 surveillance cameras in the nation's capitol. In 2011, EPIC fought to attract attention to the FAST Project, DHS' public testing of a new sensor array used to conduct covert surveillance of individuals who are not suspected of any crime. Additionally, EPIC works to protect location privacy against government monitoring in many ways, including filing a "friend of the court" brief in U.S. v. Jones, urging the Court to find warrantless GPS tracking device by the police unconstitutional.

In 2005, EPIC first publicized the impact that drones have on Privacy, specifically in the area of border surveillance. EPIC explained, "the use of UAVs gives the federal government a new capability to monitor citizens clandestinely, while the effectiveness of the expensive, crash-prone surveillance planes in border patrol operations has not been proved."

On February 24, 2012, EPIC, joined by over 100 organizations, experts, and members of the public, submitted a petition to the FAA requesting a notice and comment rulemaking under the Administrative Procedure Act on the privacy impact of drones. The petition pointed out that the FAA Modernization and Reform Act of 2012 (signed on February 14, 2012) provides an opportunity for the Agency to address the privacy questions raised by drone usage. On July 13, 2012, EPIC's Amie Stepanovich testified in front of the House Subcommittee on Oversight, Investigations, and Management, stating "there are substantial legal and constitutional issues involved in the deployment of aerial drones by federal agencies that need to be addressed."

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