Drone in the United States

Unmanned aircraft systems (UAS), commonly called unmanned aerial vehicles (UAVs) or drones, have a host of applications including law enforcement.

In the next two decades, as many as 30,000 drones could be licensed to fly in the United States. Will these highly-maneuverable, video-equipped flying machines end privacy as we know it?

Clearly, these video-equipped, highly maneuverable, “flying cell phones” raise serious privacy concerns. However, drones also can be used in ways that we can all feel good about. They promise to make both firefighting and search-and-rescue operations much more effective, for example. And they could revolutionize agriculture.”It’s unfortunate,” says Humes, “that in this country we’ve emphasized the scariest applications,” which threaten to undermine our civil liberties. And it would be a shame, he adds, if we let those concerns entirely taint our view of this technology. Ultimately, says Humes, we need a balanced approach, one that builds in the necessary safeguards without preventing us from realizing the potential benefits.

Drones are growing in popularity among consumers, but it’s a fine line between innocent domestic use and invasion of privacy,

Drone Privacy Invasion and Issues

By Edward Humes. based in Southern California, he is a Pulitzer Prize-winning journalist and author of twelve nonfiction books.

The Federal Aviation Administration restricts the recreational use of drones to unpopulated areas and very low altitudes, and bans their commercial use altogether.

“The U.S. drone rules are essentially unenforceable,” says Pirker, who, as part of an informal group of drone enthusiasts known as Team BlackSheep, sells unmanned aircraft from his home base in Hong Kong. (Depending on the range of the custom video-streaming transmitter, prices can run as high as $3,500.)

“This is what we do for fun,” he adds. “But we also do it to demonstrate the many uses of this technology – and to expose the holes in most [countries’] regulations.”

It’s hardly a matter of dispute that the FAA needs to craft new rules on drones. What’s less clear, though, is whether the agency will be able to meet a congressionally mandated 2015 deadline. It’s a complex task, to be sure. As the FAA estimates, as many as 30,000 of these unmanned flying machines could be licensed in the United States for nonmilitary purposes in less than 20 years. That would include everything from the two-pound wonders that Pirker flies to the airliner-size, pilot-free transoceanic cargo planes that companies such as Federal Express are eager to deploy.

Air safety and traffic are the FAA’s primary focus, but concerns about drone use don’t stop there. Civil rights advocates worry that law enforcement’s use of tiny drones – easily equipped with night-vision capabilities and directional microphones – could stretch the “in plain sight” doctrine to an absurd degree, and in the process end privacy as we know it. On the other hand, journalists argue that restricting the public’s use of this rapidly evolving technology could threaten the press’s First Amendment right to gather and disseminate news. And as the courts begin to weigh in on these issues, it’s anyone’s guess how well current stalking, peeping, and wiretapping laws can check the proliferation of drones over the United States.

Do Pirker’s pint-size devices portend pervasive police searches, unstoppable robo-paparazzi, and flying spybots – which already can be purchased online for a few hundred dollars? “No matter what happens next,” predicts Matt Waite of the University of Nebraska’s Drone Journalism Lab (which studies both the practical uses of drones in journalism and the legal and ethical issues they pose) “everybody is going to sue everybody.”

California is one of the world’s major centers for drone research, and therefore a natural place for these debates to play out. Among its leading defense contractors is San Diego’s General Atomics Aeronautical Systems, maker of the missile-equipped Predator, often used to take out suspected militants in Afghanistan, Pakistan, Yemen, and elsewhere. In Ventura County, AeroVironment specializes in smaller observer drones. Lockheed-Martin, Boeing, and Raytheon, which maintain operations in California, each have a piece of the military drone market as well.

Meanwhile, smaller companies such as 3D Robotics, a San Diego start-up, are building inexpensive drones for the hobbyist market. In Washington, D.C., 7 of the 50 representatives who belong to the House Unmanned Systems Caucus, cochaired by U.S. Rep. Howard “Buck” McKeon (R-Santa Clarita), are Californians. And it’s widely anticipated that the Golden State will soon host one of six national drone test sites to help the federal government determine how to integrate drones into our domestic airspace.

California figures prominently too in the legal history of aerial snooping. In 1986 the U.S. Supreme Court held in California v. Ciraolo (476 U.S. 207) that police could legally spy on private property from an aircraft without warrants. The high court, however, has hinted that it may look differently on searches conducted by stealthier, highly maneuverable drones that can be deployed far more cheaply – and therefore pervasively – than piloted aircraft.

“The technology is rapidly evolving and very easily abused,” says Linda Lye, staff attorney for the American Civil Liberties Union of Northern California, which sharply objected to a recent draft policy prepared by the Alameda County Sheriff’s Department on drone usage. “It’s vital that the law keep up,” Lye adds.

But what, exactly, does keeping up mean, if the goal is to curtail the possible abuses of drone technology while also trying to aggressively exploit its potential in such areas as farming, firefighting, and search-and-rescue operations? At this point, no one really knows.

We basically take cell phones and give them wings and propellers, and use them as data-acquisition devices,” says Chris Anderson, formerly the editor of Wired magazine. Now, as the CEO of 3D Robotics, he sells about a thousand drones or drone guidance systems a month, starting at about $600 apiece.

Another high-flying entrepreneur who is bullish on drones is Patrick Egan of Sacramento. Prior to February 2007, he claims, he was making up to a thousand dollars a day using drones to photograph high-rise condos and other properties for real estate agents and corporate clients. But after he drew attention to himself by publicly questioning the FAA’s rules, the agency ordered him to shut down his business until the FAA could issue new rules. That was six years ago.

“It all seems very arbitrary and capricious,” says Egan, who can’t help but notice that others with lower-profile operations continue to do commercial real estate photography with drones.

For regulatory purposes, the FAA splits the domestic drone market into three distinct categories: civil, public, and recreational. The civil side consists primarily of commercial drones flown for profit, which have never been flown legally in the United States, and five experimental certificates granted by the FAA for research and training. Doing business with drones will remain officially banned until at least 2015, when the FAA is supposed to issue new standards for pilots, registration, licensing, and onboard sensory and collision-avoidance technology.
Once these standards are in place for civil drones, public-agency drones will undoubtedly have to follow similar safety and certification standards. But for now, public-drone flights can be authorized on a case-by-case basis under limited range, altitude, and operating restrictions through special FAA certificates of authorization (COA).
More than 1,400 of these COAs have been issued since 2007, and 327 remain active. Most of the 10 that are active in California are held by universities or military bases. Law enforcement agencies have also expressed an interest in applying for COAs. And, in fact, just two months ago FBI Director Robert Mueller told a Senate committee that his agency has used drones in domestic surveillance.

To date, only one arrest has occurred on American soil in which it was publicly acknowledged that drone surveillance played a key role. That was in North Dakota in 2011, when Nelson County authorities investigating suspected cattle thieves they believed were armed and dangerous received assistance from a Predator drone. Sheriff Kelly Janke said the Predator overflight – which would not have required a warrant if performed by a piloted craft – helped deputies stage a safe, nonviolent arrest.

As for those who fly drones purely for fun, they are subject to FAA hobbyist rules that were originally developed as voluntary guidelines for model airplane enthusiasts back in 1981. The regulations cover all model aircraft that are not flown for profit. According to FAA Advisory Circular 91-57, recreational drones are supposed to operate within 400 feet of the ground, remain within sight of their operators at all times, and steer clear of airports, other air traffic, and populated areas. But, as Pirker’s videos clearly show, these restrictions aren’t always adhered to.

Pirker maintains that the FAA’s rules are merely “advisory,” and that they lack the force of law so long as operators fly in what he describes as a “safe manner.” But, of course, the FAA doesn’t see it that way, and in June the agency issued a $10,000 fine against Pirker for various regulation infringements, including operating a drone, or unmanned aircraft system (UAS), “in a careless or reckless manner, so as to endanger the life or property of another.” Pirker says he cannot afford, nor will he pay, the fine, and he continues to deny wrongdoing.

Others, too, are receiving unwanted attention from the feds. Among them, News Corp’s now-shuttered tablet-format news website, The Daily, which drew a cease and desist order last year when it used a drone to gather aerial footage for a report on tornado devastation in the Midwest. And though independent filmmaker Patrick Gilles used a drone to shoot some scenes for his 2011 movie, Olive, in his next film he’s decided to stay on the right side of the law, even though it means he now has to shoot the film’s aerial scenes from a helicopter, which is not only more expensive but more dangerous as well.

In addition to what the feds are doing to deter drone use, state and municipal officials seem determined to draft their own domestic-surveillance drone laws – even though federal regulations could preempt many of those measures. The ACLU reports that no fewer than 42 states have considered regulations or restrictions on drones, with preservation of privacy being the prime concern. Florida, Idaho, Montana, and Tennessee already require search warrants in most cases before police can use drones, and Virginia police have been barred from using drones with or without warrants for the next two years.

Texas, on the other hand, is going in a very different direction. In June its governor, Rick Perry, signed into law a bill that goes into effect next month, which allows law enforcement officials to use drones for surveillance if they have “reasonable suspicion” of criminal activity. The law also makes it a misdemeanor for most private drone owners to fly their craft over private property without permission. This legislation, by the way, was drafted after a hobbyist’s drone inadvertently showed a meatpacking plant illegally polluting a river.

In California, the state Senate recently passed a bill (SB 15) that would expand existing criminal and civil penalties for invasion of privacy, eavesdropping, and peeping when drones are involved. The bill also would require search warrants when police use drones for surveillance of people or property that would otherwise require warrants.

At a recent committee hearing, state Sen. Alex Padilla (D-Pacoima) explained that the goal of his bill is to add drones to existing privacy and search warrant statutes. “We need look no further than the Boston Marathon [bombings in April] to just imagine what someone with nefarious intent could do with technology like this,” he said. “So in the absence of any regulatory structure, we do need something in place.”

Padilla’s bill would also ban drones in California from carrying weapons.

The drones Americans know best, of course, are the San Diego-built Predators. These massive, hawk-billed birds, costing $4 million apiece, are designed to conduct long-range remote surveillance and rain Hellfire missiles down on far-flung targets. As sophisticated as these killing machines are, though, when it comes to developing this technology for civilian applications the United States lags well behind much of the rest of the world.

As far back as the late 1980s, Japanese farmers were using unmanned helicopters for crop dusting. The Australians too are moving forward. A decade ago the government began licensing drone operators for aerial photography, surveying, and media coverage of sporting events. And now there are proposals on the table to further expand the use of drones.

But in this country, it’s only since the wars in Iraq and Afghanistan started to wind down that domestic applications have been more broadly considered. One company that is looking for new markets is AeroVironment. After seeing its annual revenues for military drones shrink by almost a third last year, the company began assessing both emergency responders and law enforcement as potential sources of business. “The possible uses of this technology are extremely broad,” says Steven Gitlin, who is the company’s vice president of marketing strategy and communications. But law enforcement, he adds, is “a logical first step.”

Not everyone would agree. Mark Corcoran, a drone researcher at Sydney’s University of Technology in Australia, believes the FAA made a major tactical blunder when it singled out law enforcement as the first domestic drone application in the United States to be phased in. “Had the FAA first permitted the demonstration of more positive civilian applications of drone technology,” Corcoran ventures, “I doubt that there would have been such an intense privacy debate.”

Indeed, the feelings that Americans have about drones these days are so negative that whenever the head of the drone industry’s largest trade group, Michael Toscano, talks about the technology, he tends to avoid using the “d” word.

“The unmanned-systems opportunity is enormous – to reduce costs, lower risks,” said Toscano, president and CEO of the Association for Unmanned Vehicle Systems International, at a drone conference in Thousand Oaks, California. “We have to avoid creating legal hurdles that can destroy this opportunity.”

For the purposes of regulation, Toscano says, “Both [manned and unmanned aircraft] involve a plane and a camera. There’s no real difference.”

“They’re not the same,” counters Lye of the ACLU. And one of the most important differences, she says, is cost. “Drone surveillance is becoming so inexpensive that it could lift a practical barrier to what has been a [legal] barrier to abuses.”

Lye suspects, moreover, that the U.S. Supreme Court may be coming around to her point of view. In last year’s case of People v. Jones (132 S. Ct. 945 (2012)), she notes the high court ruled unanimously that attaching a GPS device to a suspected drug trafficker’s car constituted a search under the Fourth Amendment. Obviously, planting a tracking device underneath a car is not at all the same as recording a suspect’s movements with a drone. But in a concurring opinion joined by three other justices, Justice Samuel A. Alito reflected on the impact of technology that is both inexpensive and potentially invasive. “In the pre-computer age,” Alito wrote, “the greatest protections of privacy were neither constitutional nor statutory, but practical. … Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap.”

However, at Pepperdine University associate law professor Gregory S. McNeal characterizes privacy concerns about drones as “somewhat overwrought.” He also thinks the ACLU’s proposal for warrant requirements are problematic and will lead to troubling inconsistencies. For example, he notes that a crime automatically recorded by a police car’s dashboard camera is admissible in court. But were a drone to capture the same footage without a warrant, it would be inadmissible under the ACLU’s proposal.

The best way to deal with these issues, says McNeal, is through public transparency and reporting requirements. “Then, if you found out that some officer likes to fly his drone near a sorority house with the camera always pointed in its direction, at the end of the month, when the logs are made, the public will see what he’s doing and he’ll have to stop.”

Transparency is a goal that drone enthusiast Pirker can warm up to, as well. After all, when it comes to flying drones, no one is more “out there” than he is.

“Our [two-pound models] are nothing like the big military drones,” he says. “They can’t hurt anything. With some commonsense rules and some training, the safety issues can be resolved – and then the sky’s the limit.”

Drones v. Privacy

The use of drones by the military has become increasingly prevalent in the United States’ conflicts in the Middle East. However, with the cost of these “unmanned aerial systems”, there is now talk about potential use for these drones on U.S. soil.

These drones have already been used by law enforcement in finding missing persons, and by county planners in measuring the growth of landfills. Drones have also been used to investigate suspected arson, using thermal cameras to identify hot spots and investigate the path the fire traveled. Other potential beneficial uses include reading license plates and face recognition.

However, the cost of drones is dropping to the point that private individuals and companies may have access to their use. Some fear that criminals such as drug dealers and pedophiles could take advantage of the technology. On a less sinister level, nosy neighbors may use these devices to monitor their neighbors.

With this technology, issues regarding citizens’ privacy must be addressed. “Surveillance by government is limited by the Fourth Amendment’s protection against unreasonable searches and seizures, and snooping by corporations and individuals is covered by privacy law and common law. But these were not written with drones in mind.” As such, states have already considered legislation specifically aimed at the issue of drones and privacy, with Congress lagging behind in the process.

While drones serve invaluable functions in the military, and provide great benefits to law enforcement and other governmental agencies, the potential use by private citizens and corporations raises great concern. Even the use by law enforcement and governmental agencies raises concerns about overreaching use of this technology. Without added legislation, citizens’ rights to privacy will be compromised, and this right of privacy is not and cannot be usurped simply by using technology not originally contemplated or in existence when these laws were originally enacted. It should be the spirit of the law (the right to privacy) that is protected, no matter the words used to convey this intent.

Author: Paul Venard