Domestic Unmanned Aerial Vehicles (UAVs) and Drones

Top News

  • FAA Ignores Privacy Concerns in Public Rulemaking on Commercial Drones: The Federal Aviation Administration announced a public rulemaking for the integration of small commercial drones into the National airspace. The rules will establish safety procedures but will not address privacy concerns. The agency stated that privacy "issues are beyond the scope of this rule making." EPIC and 100+ organizations, experts, and members of the public petitioned the FAA to conduct a public rulemaking on the privacy impact of domestic drone use. Several members of Congress, including Senator Markey and Senator Paul have urged the establishment of privacy laws before surveillance drones are deployed in the United States. (Feb. 19, 2015)
  • President Orders Federal Agencies to Adopt Privacy Rules for Drone Use, FAA Proposes Weak Rules for Commercial Users: The President has issued a new Executive Order requiring all federal agencies to adopt privacy rules for drone use. The Order is intended to limit the collection and use of personally identifiable information. The rules will also require agencies to adopt transparency and accountability procedures for drone use. The Order incorporates recommendations made by EPIC in testimony to Congress and comments to several federal agencies. The Federal Aviation Administration has also proposed new regulations for commercial drone use in the United States. These rules will establish safety procedures for drone use, including maximum height, weight and line-of-sight operation, but the rules do not address the privacy impact of commercial drone use. EPIC petitioned the FAA to establish clear privacy rules for commercial drone operators. (Feb. 15, 2015)
  • FAA Settles Case Testing Legality of Commercial Drone Ban: The FAA has settled a case, Huerta v. Pirker, that challenged the agency's ability to regulate the commercial use of drones. The settlement requires the drone operator to pay a $1,100 fine for violating the FAA regulation. Despite the ban, the agency continues to grant exceptions for commercial drone use. A small drone recently crashed on the White House grounds, raising additional concerns the anticipated deployment of drones in the United States. EPIC has petitioned the FAA to establish clear privacy rules for the operation of commercial drones. (Jan. 27, 2015)
  • EPIC Urges New Mexico Supreme Court to Limit Aerial Surveillance: EPIC Senior Counsel Alan Butler will argue before the New Mexico Supreme Court this week in a case concerning police surveillance. EPIC filed an amicus curiae brief in State v. Davis warning of the risk of widespread drone surveillance and arguing that aerial surveillance within the airspace surrounding an individual's home is a search under the Fourth Amendment. EPIC frequently files amicus briefs in federal and state courts on emerging privacy and civil liberties issues. (Jan. 13, 2015)
  • Inspector General: Border Drone Program Expensive, Ineffective: The DHS Office of Inspector General has released a new report on the drone surveillance program operated on the US border. The Inspector General found that the government "has invested significant funds in a program that has not achieved the expected results, and it cannot demonstrate how much the program has improved border security." The report also found that Customs and Border Protection underestimated the cost of operations. The Inspector General recommends tabling any expansion of the drone surveillance program. In February 2013, EPIC petitioned the agency to suspend the border surveillance program pending the establishment of concrete privacy regulations. The petition followed an EPIC Freedom of Information Act request, which found that border drones carry advanced surveillance equipment that could intercept electronic communications and identify human targets on the ground. For more information, see EPIC: Domestic Drones and EPIC Spotlight on Surveillance: Drones - Eyes in the Sky. (Jan. 6, 2015)
  • Final Act: Senator Rockefeller Proposes Drone Privacy Bill: Senator Rockefeller, the outgoing Chair of the Senate Commerce Committee and a leading privacy champion, introduced a bill to require privacy safeguards in the commercial operation of drones. The Unmanned Aircraft Systems Privacy Act of 2014 would prohibit surveillance of individuals by companies unless explicit prior consent is obtained and would require the development of remote identification transmission technologies for drones. The bill would also provide a private right on action against invasions of privacy in violation of the act and grant the FTC additional authority to regulate on commercial drone privacy issues. EPIC previously testified before Congress in support of a drone privacy law. EPIC recommended data use and retention limitations as well as additional transparency and accountability measures for drone operators. For more information, see EPIC Spotlight on Surveillance: Drones - Eyes in the Sky and EPIC: Domestic Drones. (Dec. 24, 2014)
  • EPIC Asks New Mexico Supreme Court to Limit Aerial Surveillance: EPIC filed an amicus brief in a New Mexico Supreme Court case considering the warrantless search of private property. State v. Davis concerns law enforcement surveillance in a low-flying helicopter. EPIC argued that warrantless surveillance around a person's home violates both property interests and an individual's reasonable expectation of privacy. EPIC also warned the New Mexico high court that "Drones will enable broader use of aerial surveillance by law enforcement" agencies. EPIC explained that "it will be necessary to establish privacy rights to protect against constant monitoring." EPIC previously testified before Congress in support of a drone privacy law and petitioned the FAA to establish privacy safeguards for drone use. For more information, see EPIC: State v. Davis and EPIC: Domestic Unmanned Aerial Vehicles (UAVs) and Drones. (Dec. 8, 2014)
  • FAA Grounds Drone Privacy Safeguards: In a letter to EPIC, the Federal Aviation Administration denied a petition to initiate a public rulemaking to address privacy and civil liberties issues posed by domestic drones. The agency stated it was not required to solicit public comments on the privacy implications of drones because privacy was "not an immediate safety concern." In March 2012, EPIC joined by over 100 other organizations, experts, and members of the public petitioned the FAA to "conduct a notice and comment rulemaking on the impact of privacy and civil liberties related to the use of drones in the United States." The agency published a notice with proposed privacy requirements for drone operators at FAA designated drone test sites. 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 that test site operators develop privacy policies but did not require any specific baseline privacy standards for drone operators. For more information, see EPIC: Domestic Drones and EPIC Spotlight on Surveillance: Drones - Eyes in the Sky. (Dec. 1, 2014)
  • EPIC Spotlight: Domestic Drones, Surveillance, and the Privacy Risks: EPIC's Spotlight on Surveillance Project returns to focus attention on domestic drone surveillance. Congress recently mandated that the Federal Aviation Administration integrate drones into the National Airspace, raising concerns about both safety and privacy. The FAA has begun granting limited exemptions to the current ban on commercial drones. EPIC's Spotlight "Eyes in the Sky" examines the surveillance capabilities of drone technology and recommend comprehensive privacy legislation. EPIC has also testified in Congress in support of drone privacy law, urged the FAA to mandate minimum privacy standards, and pursued several significant FOIA cases. For more information, see EPIC's Spotlight on Surveillance on Drones and EPIC: EPIC v. Army (Surveillance Blimps). (Oct. 23, 2014)
  • UPDATE-Army Backs Off Plan for DC Surveillance Blimp: According to the Washington Post, the Department of Army will not deploy video surveillance cameras over the nation's capital. The announcement follows the release of documents to EPIC in a Freedom Information Act lawsuit. The blimps provide radar-based aerial surveillance and targeting capabilities. A recent video by the contractor Raytheon revealed that 24/7 video surveillance feed is easily incorporated. An Army Spokesperson told the Post that the blimps will "absolutely, 100 percent" not include video capacity. A similar EPIC FOIA case against the Bureau of Customs and Border Protection revealed that drones are designed to incorporate advance video surveillance gear even when not initially deployed. For more information, see EPIC: EPIC v. Army - Surveillance Blimps, EPIC: Domestic Unmanned Aerial Vehicles (UAVs) and Drones, and EPIC: Freedom of Information Act Litigation. (Sep. 8, 2014)

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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