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ACLU Testifies as Congress Takes on Domestic Drones

Sandra Fulton,
ACLU Washington Legislative Office
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October 25, 2012

UDPATE: You can watch the video of the full hearing here.

The ACLU testified today before a House field forum examining drone technology and the Fourth Amendment at Rice University called by Rep. Ted Poe (R-Tex.). Drones have gotten a lot of attention lately – U.S. law enforcement agencies are eager to get their hands on them while civil libertarians are concerned about the potential threat to privacy. The panel for today’s hearing, which was held in conjunction with the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, included representatives from across the board, with witnesses from the advocacy, law enforcement, and academic worlds.

Our legislative counsel, Chris Calabrese, explained the ACLU’s concerns regarding the lack of regulations on this quickly-spreading technology (read his complete prepared testimony here).

Calabrese testified that while government has long used manned aerial surveillance such as planes and helicopters, unmanned drones potentially pose new threats to our privacy. Helicopters and planes are expensive to purchase, operate, and maintain – an economic burden that has limited how much the government can own and deploy aircraft. Drones, on the other hand, are relatively inexpensive and have no such deterrent. And when combined with other growing technologies, the unregulated use of drones could create a surveillance environment we have only seen in science fiction. Calabrese explained:

Imagine technology similar to the naked body scanners we are all familiar with from airports attached to a drone. Through technologies like face recognition, improved analytics, and wireless internet, it is possible to track specific individuals with multiple drones. Drones and license plate scanning could be used to track cars for traffic enforcement.

To be sure, drones can be incredibly useful to law enforcement for jobs such as firefighting, search and rescue, or dangerous police actions. However, as the use of drones is expected to increase dramatically due to legislation passed this year ordering the FAA to provide for expanded use, strict safeguards must be put in place by the federal government to maintain Americans’ right to privacy.

These safeguards, Calabrese told the hearing, should be based on the following four principles, which are described in more detail in our recent report on domestic drones:

  1. No one should be spied on unless the government believes they have committed a crime. A warrant should be required for use on private property, while a lower threshold might be acceptable for monitoring someone in public. We must protect against mass, baseless reconnaissance.
  2. Information collected by drones should only be used for the specific purpose the drone was flown for. Data cannot be shared for general law enforcement or administrative purposes.
  3. Drones should never be armed.
  4. Proper oversight must be put in place.

Drones and Our Expectation of Privacy

Today’s hearing focused on the expected use of drones versus our expectation of privacy. While panelists from law enforcement were concerned about possibly over-regulating such useful technologies, all panelists agreed that a proliferation of drones raises different and heightened privacy concerns for the American public.

Speaking passionately, Rep. Hank Johnson (D-Ga.) said, “We are not a nation of suspects. Warrants must be narrowly tailored to protect against unlawful searches.”

He also expressed concerns over how individuals might “censor their speech and curtail their self-expression when they believe they are being watched by big brother.”

David Leebron, president of Rice University, spoke about the balance between security and privacy. “A surveillance state is incompatible with liberty,” he said, adding that “we choose to not become a surveillance society by finding the appropriate balance between privacy and the needs of law enforcement.”

But who should determine the balance? Congress or the courts?

There was general consensus among the panelists that Congress was best positioned to regulate drone use. President Leebron explained that Congress’s access to the public, through hearings and contact with constituents, allowed it to best consider the nuanced issues surrounding drones. The ACLU’s Calabrese agreed, noting that unlike the courts, Congress can draft legislation permitting effective uses of drones while setting rules governing their use for criminal law enforcement. This would offer an important safeguard against mass surveillance by drones.

Rep. Poe has introduced HR 6199, the Preserving American Privacy Act of 2012. We believe that the bill is a good first step towards regulating government use of drones. It honors the appropriate constitutional standard that a warrant is necessary for any search of private property.

As the use of drones by law enforcement becomes increasingly common, it is vitally important that the laws are updated to maintain a robust level of privacy for Americans. We are glad to see members of Congress addressing this important issue.

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