On Tuesday, Sen. Rand Paul (R-Ky.) introduced the Preserving Freedom from Unwarranted Surveillance Act, which requires all government agencies and entities to acquire warrants before using unmanned aerial vehicles for surveillance.
Paul argued that drones must be treated like all other information gathering tools available to law enforcement agencies and individuals; just like unwarranted wire-tapping, unwarranted drone surveillance should be prohibited. "Americans going about their everyday lives," he said, "should not be treated like criminals or terrorists and have their rights infringed upon by military tactics."
The bill offers three vague exemptions for the use of UAVs without warrants: border patrol agencies can use drones to prevent or deter illegal crossing; law enforcement can use drones when "exigent circumstances" exist; drones can also be used when the Secretary of Homeland Security identifies a credible, high risk terrorist threat.
Paul's bill touches on a number of very legitimate privacy concerns. Everybody and their mothers want to live in a free and secure state. Seaside resorts, for instance, become significantly less enjoyable when there are frequent "exigent circumstances." But nobody really equates their idyllic life with an Orwellian dystopia marred by intense and constant surveillance.
While there’s no way this bill will pass in the Senate in its current form, it should force policy makers to consider some important issues about security and privacy that policy. We want drones when we need them, but when exactly do we need them? How do you use drones in prevention? What exactly are "exigent circumstances?"
The Rise Of The Drone
Just a week ago, the Senate Armed Services Committee released its report on the 2013 Defense Authorization bill, calling for the free and routine use of UAVs in U.S. airspace. The Armed Services Committee’s report relayed the popular opinion that drones "have clearly demonstrated their immense value to DOD military capabilities in the global war on terrorism."
According to Peter Singer at the Brookings Institute, the U.S. military has more than 7,000 active drones, with 12,000 more on the ground. Drones have been used in hundreds of operations in six countries. That leaves a lot of readily available drones when the conflicts in Afghanistan and elsewhere come to a close.
Safety for military and police personnel is certainly at the heart of the issue. "It’s great!" Gov. Bob McDonnell said. "That why we use [drones] on the battlefield… if you’re keeping police officers safe, making it more productive and saving money… it’s absolutely the right thing to do."
But how does the use of drones affect US governance, at home and abroad? Singer has some a poignant point to make:
I do not condemn these strikes; I support most of them. What troubles me, though, is how a new technology is short-circuiting the decision-making process for what used to be the most important choice a democracy could make. Something that would have previously been viewed as a war is simply not being treated like a war… Without any actual debate, we have set an enormous precedent, blurring the civilian and military roles in war and circumventing the Constitution’s mandate for authorizing it. Freeing the executive branch to act as it chooses may be appealing to some now, but many future scenarios will be less clear-cut. And each political party will very likely have a different view, depending on who is in the White House.
There is an obvious distinction between the domestic and military uses of drones, since the ethical and political considerations seem to be completely different even though they really aren’t. Singer is pointing to the way the US government wages war. What will happen when drones are regularly used to surveil the US population? What sorts of precedents will that set for the issues of privacy?
Drones And The Law
Under current law, the precedent is fairly depressing. Ryan Calo of Stanford law says, "Citizens do not enjoy a reasonable expectation of privacy in public, nor even in the portions of their property visible from a public vantage." If you don’t trust Calo, look at the precedents set by California v. Ciraolo in 1986 and Florida v. Riley in 1989.
Is a reasonable expectation that government entities and agencies will not be flying these around your windows?
That guy’s pretty passionate about the military applications, but what about the policing applications? Implementation is also difficult. With thousands of drones in public airspace, figuring out licensing and traffic problems falls to the Federal Aviation Administration.
But cost is really the most compelling issue. John Villasenor and Benjamin Wittes, senior fellows in Governance Studies at the Center for Technology Innovation, write, "In an era of ever-tighter budgets, [drones] could dramatically reduce the cost to law enforcement agencies and private companies involved in gathering vital – in some cases, lifesaving – information." The authors go on to say that drones set the stage for a ripe discussion about "how to protect individuals in the context of the rapid proliferation of information-gathering technologies to governments, companies and our neighbors."
And that’s where Paul comes in with the Preserving Freedoms From Unwarranted Surveillance Act. Recognizing that drones offer some legitimate forms of patrolling, policing and prevention, Paul also recognizes that drones pose a serious threat to individual privacy.
It might not be the finest piece of legislation, but it marks the new start for privacy law. Calo writes that domestic drones "could be just the visceral jolt society needs to drag privacy law into the 21st century." And those laws couldn’t come soon enough.
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