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Unmanned Aerial Vehicles (UAVs) and Drones

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  • FAA Revises Drone License Procedures, Privacy Petition Still Pending: The Federal Aviation Administration has announced new procedures for government agencies that operate drones in the United States. The procedures will streamline the process through which government agencies, including local law enforcement, receive drone licenses. However, the FAA has so far failed to establish privacy safeguards for drone use. On February 24, 2012, EPIC, joined by over 100 organizations, experts, and members of the public, submitted a petition to the FAA requesting a public rulemaking on the privacy impact of drone use in US airspace. For more information, see EPIC: Unmanned Aerial Vehicles (UAVs) and Drones. (May. 15, 2012)
  • EPIC Stresses Need For Privacy Evaluation in Drone Testing : In comments to the Federal Aviation Administration (FAA), EPIC emphasized the need for transparency and accountability in drone operations, and recommended the development of privacy protections before drones are more widely deployed in the US. The FAA Notice of Proposed Rulemaking set out proposed criteria for drone testing. Congress has tasked the FAA with facilitating the use of drones in the domestic airspace. February, EPIC, joined by a coalition of more than 100 organizations, experts, and members of the public, petitioned the FAA to conduct a rulemaking on the privacy implications of domestic drone use. For more information, see EPIC: Unmanned Aerial Vehicles (UAVs) and Drones. (May. 9, 2012)
  • Bi-Partisan Privacy Caucus Demands Answers on Drones and Privacy: Congressman Markey (D-Mass) and Congressman Barton (R-TX) sent a letter to the Federal Aviation Administration (FAA), raising concerns about the increased use of drones in the United States. The Congressmen noted, "there is...potential for drone technology to enable invasive and pervasive surveillance without adequate privacy protections." The letter called on the FAA's Acting Administrator to supply key information about the drone program, including plans to ensure that the drone licensing process includes privacy protections and public transparency. In February, EPIC, joined by a coalition of more than 100 organizations, experts, and members of the public, petitioned the FAA to conduct a rulemaking on the privacy implications of domestic drone use. For more information, see EPIC: Unmanned Aerial Vehicles (UAVs) and Drones. (Apr. 19, 2012)
  • EPIC Petition Demands that FAA Protect Privacy and Regulate Drones: EPIC, joined by more than 100 organizations, experts, and members of the public, has sent a petition to the Federal Aviation Administration, urging the agency to address the privacy threats associated with the increased use of drones in the United States. Congress recently passed legislation requiring the Agency to assess the safety of drones used by commercial and government operators. The petition asserts that "The privacy threat posed by the deployment of drone aircraft in the United States is great. The public should be given the opportunity to comment on this development." For more information, see EPIC: Unmanned Aerial Vehicles (UAVs) and Drones. (Feb. 24, 2012)
  • Support EPIC's Petition: Tell the FAA to Begin a Rulemaking on Drones and Privacy: The Federal Aviation Administration is about to begin a public rulemaking on public safety related to drone use. EPIC would like the FAA to also undertake a rulemaking on privacy. The use of drones in US airspace poses a real threat to important privacy interests, and the Agency has the authority to regulate the use of drones. If you would like to sign EPIC's petition, please send an e-mail with the subject line "I support the EPIC Drone Privacy Petition to the FAA," your full name, and email address or twitter handle to drones@epic.org. Your name will be added as a signatory. All emails must be received by midnight on Friday, February 24, 2012. For more information, see EPIC: Unmanned Aerial Vehicles (UAVs) and Drones. (Feb. 22, 2012)
  • 2013 Federal Budget Limits Body Scanners, But Expands Domestic Surveillance: According to White House budget documents and the Congressional Testimony of Secretary Napolitano, DHS will not purchase any new airport body scanners in 2013. However, the agency will expand a wide range of programs for monitoring and tracking individuals within the United States. This includes the development of biometric identification techniques for programs such as Secure Communities. DHS will also seek funding for "Einstein 3," a network intrusion detection program that enables surveillance of private networks. EPIC has urged the DHS to comply with the requirements of the federal Privacy Act, and is currently pursuing several Freedom of Information Act lawsuits against the agency. For more information see, EPIC - Body Scanners and Radiation Risks, EPIC - E-Verify, EPIC - Secure Communities, EPIC - Fusion Centers, EPIC - Drones, EPIC - Cybersecurity, EPIC - Secure Flight. (Feb. 20, 2012)
  • FAA Legislation Prompts Agency to Assess Safety of Drones in US Airspace: In the Re-Authorization Bill for the Federal Aviation Administration, Congress has required the agency to develop rules governing the operation of drones within U.S. National Airspace. Currently, the only barriers to operation of unmanned aircraft are procedural requirements that oblige drone operators to obtain operation certificates. The FAA Modernization and Reform Act of 2012 requires the agency to conduct a public rule-making that will assess public safety concerns, licensing requirements, flight standards, and air traffic requirements. The FAA Secretary will also undertake safety studies and develop standards for "Safe Operation" in US airspace. However, the legislation does not consider the need to assess the privacy risks of the deployment of drones in US airspace. For more information, see EPIC: Unmanned Aerial Vehicles (UAVs) and Drones. (Feb. 8, 2012)

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."

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.

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.

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 January 2012, CBP was operating nine 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 have indicated 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. Also, "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.

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. A second petition, housed on the White House's We The People portal, provided members of the public with an on-going manner in which to show support for EPIC's request.

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