Drones Affirmative - JDI 2015

Racism adv Drones are racist Kindynis 12

(Theo, writer and researcher considers issues of policing, security and social control, October 14 th 2012, “Eyes in the sky: the rise of the police drones”,https://ceasefiremagazine.co.uk/eye-sky-primer-police-drones/)

The notoriously brutal LAPD – long seen by many in the black community as an occupying (para)military force – was the first police force to use the technology, flying a lightweight SkySeer surveillance drone over the streets of South Central since 2006. Since then, the Department of Homeland Security has awarded hundreds of thousands of dollars in grants for small UAVs to at least 13 police departments, and the Supreme Court has ruled that individuals have no right to privacy from police observation from public airspace. Until now, restrictions imposed by the Federal Aviation Administration (FAA) have kept many

drones on the ground. However, Congress recently passed a law requiring the FAA to loosen these restrictions and

most police forces are expected to be able to fly small UAVs by next year. In the meantime, the New York Police Department is “investigating the possible use of UAV’s as a law enforcement tool”, whilst the Miami-Dade Police Department already has a fleet of drones ready to fly. Within the UK, arms manufacturer

BAE Systems was revealed in 2010 to be working alongside several government agencies to develop an unprecedented national strategy for the use of drones by police in “routine” surveillance, monitoring and evidence gathering. According to a recent report by Drone Wars UK, the British government has spent £2 billion on military drones since 2007. BAE, which already produces a range of UCAVs for use in warzones such as Afghanistan and Iraq – including the deadly Mantis and stealth bomber-style Taranis drones – are now reported to be adapting military-style drones for a range of police uses. At least four constabularies are known to have already used or trialed drones, with many more expressing an interest in the technology. However, those aircraft trialled so far have been little more than small remote-controlled helicopters fitted with cameras. Furthermore, British law enforcement’s forays into UAV surveillance have met with decidedly mixed results. Merseyside police have reportedly trialled a lightweight helicopter-style drone from 2007 until early 2010 when they crashed the £13,000 UAV into the River Mersey. To make matters worse, the force could face prosecution for using the aircraft without a license – a criminal offence. The British Transport Police apparently conducted a short trial with a similar model, though eventually deciding not to purchase one. Meanwhile, a drone acquired by Essex police has been left to languish in a warehouse after the force decided it wasn’t worth the money. Whilst Staffordshire police have managed to use a drone to spy on revellers at V Festival, they were unable to fly it over the main arena because of fears it might crash and injure someone. Most recently, plans to use larger military-style drones for aerial crowd surveillance during the London 2012 Olympic Games were hampered by Civil Aviation Authority (CAA) regulations. However, the prospects for drone surveillance by British law enforcement agencies look likely to change in the near future. Speaking at the launch of a new National Police Air Service last week, police minister Damian Green endorsed the use of drones by British police for aerial surveillance purposes. “Drones are like any other piece of kit” claimed Green; “Where it’s appropriate or proportionate to use them then we will look at using them”. For his part, Chief Constable Alex Marshall further remarked that whilst drones are not currently used in “mainstream policing… they may well offer something for the future”. According to Chris Cole from Drone Wars UK, current CAA regulations are too severe for police drone use to be practical for most forces, although this may be set to change in the next few years (the CAA has already licensed the testing of drones at ParcAberporth in Wales). Regulations regarding small radio-controlled aircraft however remain “dangerously lax”, according to Emma Carr from privacy and civil liberties campaign group Big Brother Watch, and this is “something it appears those selling drones are keen to exploit”. Furthermore, surveillance may only be the start. “Military drones quickly moved from reconnaissance to strike” recounts Wired magazine’s David Hambling. “If the British police follow suit, their drones could be armed – but with non-lethal weapons rather than Hellfire missiles”. Noel Sharkey, a professor of Artificial Intelligence and Robotics at Sheffield University expressed similar concerns, asking, “How long will it be before someone gets tasered from the air for dropping litter?” The answer may be: not that long at all; a $300,000 Vanguard Shadowhawk drone purchased by the Montgomery County Sherriff’s Department is already capable of firing rubber bullets, tear gas canisters and taser projectiles. According to Salon, an Ohio police lieutenant interested in the drone was told by Vanguard representatives that it can also carry grenade launchers and 12-gauge shotguns. Particularly worrying here is how drone surveillance tends to abstract people from their contexts, reducing

variation and ambiguity that might otherwise impede action – such as pepper spraying or shooting a suspect – by trigger-happy police. A year ago the UK was shaken by rioting on a scale not seen in decades, a key contributing factor to which was the disastrous breakdown of relations between police and inner-city communities. According to the Guardian’s “Reading The Riots” survey, many involved in the disorder cited policing as the single most significant cause of the riots. In light of this, it seems reasonable to suggest that the kind of “remote control” policing-at-arms-length that drone-based technology inevitably encourages, whereby the local

community is viewed from afar in a form of mechanised surveillance that dehumanises both the watched and the watcher, is precisely what is not needed. Withdrawing from the beat to watch over the streets through electronic “eyes in the sky” will only stand to further alienate an already overwhelmingly and visibly homogeneous (white, male, “respectable” working-class) police force from the diverse inner city communities it exists to serve. Furthermore, the use of drones by police will be seen by many as a refusal to engage with the public at the most fundamentally human level, and thus further undermine their already dwindling legitimacy.

Domestic drones fuel the militarization of police – exports violence abroad to minority bodies Thrasher 12

(Greg, VOD Washington Bureau, Writer, May 24,2012, “Drone Alert” ,http://voiceofdetroit.net/2012/05/24/drone-alert/)

Our country spends billions of dollars on the purchase of weapons and hi tech security devices under the premise of national defense and the protection and safety of the home land. Retired generals leave our armed forces to peddle their services to defense contractors in the weapons industry. America not only arms itself but our nation is also the number one arms

dealer and weapons supplier in the world. We have more weapons of mass destruction than any other nation on the globe. America is indeed a profitable merchant in the market of warfare products .. Last week this escalation in

military purchases and devices came to the our homeland, not to protect us from our external foes but to assist and augment the armory of our local police departments. The Federal Aviation Administration loosened the restrictions on local police departments’ surveillance of us to allow them to use Unmanned Aerial Vehicles, also commonly known as DRONES. Our nation’s high court, the Supreme Court, has even ruled that

warrantless surveillance by manned aircraft is not unconstitutional and does not violate the 4th Amendment of our federal constitution. In far too many powerful public and private circles there are advocates focused on introducing the military into our cities and other venues. We now face the specter of entire cities being profiled by the usage of military-designed DRONES. Local municipalities, already burdened by fiscal deficits and lousy revenues, are actually spending huge outlays of their budgets in the purchase of these hi tech anti- freedom profile driven devices. Where is the outrage from our public officials, activist groups and even police unions over these invasive surveillance and

anti -privacy domestic military machines in our nation’s urban airspace?One of the real dark potentials of these DRONES is not only their ugly invasion and violation of privacy rights, but these DRONES also have the capacity to be lethal and deadly. The applications and operational features of DRONES are truly unimaginable. The growing militarization of our local law enforcement departments is not to be excused by fictional claims of terrorism and excessive urban crimes . We must reject and defeat the myths about crime and anarchy in our cities. We must defuse and deflate the notions that our cities are cesspools of violence and crime. The proliferation of the myth of crime and the profiling of entire bandwidths of people based upon their hue and types of clothing is dangerous. Such a public policy creates a fertile soil for the introduction of military devices like DRONES into our domestic venues. DRONES are part of the arsenal of gadgets and devices which destroy the freedoms of all Americans. We must reject all kinds of devices and gadgets which at the end of the day are WMD’s on American soil.

Drones be racistCyril 3/30

(Malkia, founder and executive director of the Center for Media Justice, March 30, 2015, “Black America's State of Surveillance,” http://www.progressive.org/news/2015/03/188074/black-americas-state-surveillance)

The ACLU's Guliani pointed out, however, that invasive forms of surveillance, especially police surveillance, often impact communities of color disproportionately, pointing to US Customs and Border Protections' ubiquitous use of drone surveillance in vast border regions impacting huge swaths of the populations that live in those areas. "You're not just talking about the physical border, you're talking about an area that encompasses

many major cities that have large minority populations, and the idea that these drones can be flown with little or no privacy protections really mean that, people, just by virtue of living in that region are somehow accepting that they have a right to less privacy," she said. African-American communities could well feel the disproportionate impacts of the integrated use of domestic drones and other surveillance in the coming years, as technologies such as StingRay are already being used mostly in the ongoing war on drugs to track those suspected of selling and buying drugs. The drug war has long negatively impacted communities of color, based on racialized drug policies and racial discrimination by law enforcement; two-thirds of all those convicted of drug crimes are people of color, despite similar rates of drug use among whites and people of color. These already-existing racial disparities in intrusive policing tactics and deployment of surveillance technologies are one of the primary reasons civil liberties experts are saying the government often gets it backward when thinking about privacy issues: deploying intrusive technologies first, and coming up with privacy policies governing their use afterward (when they may already be violating many people's civil rights). "What we see with StingRays is the same phenomenon that we're seeing with [UAS], where federal agencies are using them," Guliani said. "State and local agencies are using them. There's federal dollars that are going to buy them, and we're kind of having the privacy debate after the fact with very little information."

The government already uses surveillance to control Muslim populations in the US. Drone expansion would only expand government Islamophobia. Knefel 13(John, journalist, March 11, 2013, “Police Spying on American Muslims Is a Pointless National Shame”, http://www.rollingstone.com/politics/news/police-spying-on-american-muslims-is-a-pointless-national-shame-20130311)Civil liberties groups led by the Muslim American Civil Liberties Coalition released a new report today detailing the detrimental effects of the NYPD’s spying on Muslim communities in recent years. The report, called Mapping

Muslims: NYPD Spying and its Impact on American Muslims, alleges that more than a decade of surveillance of Muslims throughout the Northeast “has chilled constitutionally protected rights – curtailing religious practice, censoring speech and stunting political organizing.” They describe their communities as being under “a pervasive climate of fear and suspicion” that affects “every aspect of individual and community life.” The report combines publicly available documentation about the NYPD’s snooping regime – including the Associated Press’ groundbreaking

investigations into the department’s Demographics Unit – with original interviews of 57 Muslims in New York City. But the significance of this report reaches far beyond New York’s Muslim community – and even beyond the American Muslim community at large. The authors have provided a needed rebuttal to the common argument that surveillance isn’t a problem if you have nothing to hide, and that spying itself is essentially value-neutral so long as you don’t become a target of an investigation. The Muslims interviewed in the report describe a terrifying reality where trust and privacy are virtually impossible, and where lives are severely harmed by spying alone. The pervasive spying regime has effectively intimidated many would-be critics. “Many of the Shi’a organizations who were approached by activists to speak up or speak out were hesitant to do so,” says community organizer Ali Naquvi in the report. “A lot of it seems to be fear. They don’t want to be targeted for additional surveillance.” Discouraging this legitimate, constitutionally protected behavior isn’t simply an unfortunate by-product of total surveillance, but rather a primary and predictable

outcome. As anyone who has ever suspected themselves of being under surveillance will tell you, that fear changes the way you think and act. Instilling such fears is an extremely effective form of social contro l. And whether limiting civil rights and liberties in this way was the stated aim of the Intelligence Division doesn’t really matter. That has been the effect – one that was entirely foreseeable. So what has all this surveillance, this so-called “intelligence gathering,” gotten us? A terrorized local Muslim population, a police department that grossly exaggerates the terror plots it has disrupted and a crown jewel investigation of a troubled man named Ahmed Ferhani that was so problematic even the FBI – recently dubbed “the terror factory” by one author because of its role in manufacturing plots that its own agents then disrupt – wanted nothing to do with it. And as the report reminds us, Thomas Galati, the commanding officer of the NYPD’s Intelligence Division, “admitted during sworn testimony that in the six years of his tenure, the unit tasked with monitoring American Muslim life had not yielded a single criminal lead.” While Muslims in the Northeast are the people most directly affected by this surveillance, it is a national problem – both in the sense that all of our rights are infringed if anyone’s are, but also in a more

concrete way. The state’s capacity for surveillance is already enormous, and will only expand as technologies, including domestic drones, continue to increase in sophistication. When total surveillance of one population becomes normalized, we are all at a greater risk of being illegally spied on. This report is an important document that illustrates just how damaging that can be.

Warrant requirement is key Sengupta 13

(SOMINI, United Nations bureau chief at The New York Times, 24 February 2015 10:18, “Proposed Rules Regulating Domestic Drone Use Lack Police Warrant Requirement,” http://www.truth-out.org/news/item/29250-proposed-rules-regulating-domestic-drone-use-lack-police-warrant-requirement)

The use of StingRay technology as it currently stands is already incredibly secretive, with police departments and manufacturers such as Harris

Corporation concealing their use of the phone-tracking equipment from the courts through the use of non-disclosure agreements. The Department of Homeland Security's US Customs and Border Protection and the FBI already use planes and drones in areas that are more than 100 miles of the Mexican border to conduct aerial surveillance, and government agencies have been revealed to have been using Cessna planes outfitted with StingRay technology to track suspects. The FBI has been resistant to answer even lawmakers' questions about how many drones it operates and how often they are used. "It is both technologically possible and by no means a leap to imagine that once the FAA approves broader use of drones within the US by law enforcement, [law enforcement officials] may put StingRays on them," said Nathan Freed Wessler, a staff attorney with the ACLU's Speech, Privacy and Technology Project, and an expert on StingRay technology. UAS have also been outfitted with thermal sensing technologies to produce heat maps of people inside buildings. Other advocates worry if domestic drones are deployed as a platform for providing temporary internet service to consumers, it could potentially give corporate drone operators access to the internet data of those consumers and threaten net neutrality. "If internet companies were to deliver internet service in hard-to-reach places, which would be a good thing, would they then be collecting information in large quantities and would that information then be something that their contacts would then have access to?" asked Drew Mitnick who is junior policy counsel at Access, an organization dedicated to issues of internet freedom. It's questions like this that the National Telecommunications and Information Administration has been ordered by the White House to answer in a collaborative process, alongside civil society and industry groups, to develop guidelines for commercial drone use. The ACLU's Guliani pointed

out, however, that invasive forms of surveillance, especially police surveillance, often impact communities of color disproportionately, pointing to US Customs and Border Protections' ubiquitous use of drone surveillance in vast border regions

impacting huge swaths of the populations that live in those areas. "You're not just talking about the physical border, you're talking about an area that encompasses many major cities that have large minority populations, and the idea that these drones can be flown with little or no privacy protections really mean that, people, just by virtue of living in that region are somehow accepting that they have a right to less privacy," she said. African-American communities could well feel the disproportionate impacts of the integrated use of domestic drones and other surveillance in the coming years, as technologies such as StingRay are already being used mostly in the ongoing war on drugs to track those suspected of selling and buying drugs. The drug war has long negatively impacted communities of color, based on racialized drug policies and racial discrimination by law enforcement; two-thirds of all those convicted of drug crimes are people of color, despite similar rates of drug use among whites and people of color. These already-existing racial disparities in intrusive policing tactics and deployment of surveillance technologies are one of the primary reasons civil liberties experts are saying the government often gets it backward when thinking about privacy issues: deploying intrusive technologies first, and coming up with privacy policies governing their use afterward (when they may already be violating many people's civil rights). "What we see with StingRays is the same phenomenon that we're seeing with [UAS], where federal agencies are using them," Guliani said. "State and local agencies are using them. There's federal dollars that are going to buy them, and we're kind of having the privacy debate after the fact with very little information."

Current UAVs are used to police and militarize the borderWALL AND MONAHAN 2011

(Tyler Wall, Eastern Kentucky University and Torin Monahan, Vanderbilt University, 2011 “Surveillance and Violence from afar: The politics of drones and liminal security-scapes” http://www.antoniocasella.eu/nume/Wall_Monahan_drones_politics_2011.pdf)

By meshing aerial reconnaissance with aerial bombardment, drones function primarily as technologies of war. Yet UAVs are also being used as technologies of state surveillance and policing and are deployed in security-scapes other than military combat zones. For instance, in the USA drones are increasingly being used to police foreign migrants in relationship to its territorial borderzones, particularly by locating people who are attempting to enter the country illegally. In addition, as we will detail below, some police departments are now conceiving of drones as surveillance devices that might prove useful in the routine policing and monitoring of domestic territories. Soon after President Obama announced in May 2010 that 1200 National Guard soldiers (Werner and Billeaud, 2010) would be deployed to the already heavily militarized 244 Theoretical Criminology 15(3) and surveilled US–Mexico border (Dunn, 1996; Pallitto and Heyman, 2008),

conservative Arizona Governor Jan Brewer wrote a letter to Obama urging him to send also what she referred to as ‘aviation assets’,

specifically military UAVs and helicopters (Lach, 2010). Brewer asserted that drones have proven effective in US military campaigns overseas and that they would therefore assist in securing the US border: I would also ask you, as overseas operations in Iraq and Afghanistan permit, to consider wider deployment of UAVs [unmanned aerial vehicles] along our nation’s

southern border. I am aware of how effective these assets have become in Operations Iraqi and Enduring Freedom, and it seems UAVs operations would be ideal for border security and counter-drug missions. (Quoted in Lach, 2010) This appeal for drones at the border obscures the fact that UAVs have already been providing aerial surveillance over US border regions (Shachtman, 2005; Gilson, 2010). Since 2006, the USA has spent approximately $100 million for UAVs on both the southern and northern US borders as part of its efforts to create a so-called virtual fence (Canwest News Service, 2007). As of 2010 the US Customs and Border Protection (CBP) was operating six unarmed Predator drones for overhead surveillance missions along the US–Mexico border, five of which were based in Brewer’s state of Arizona (Gilson, 2010). Since late

2007 or early 2008, the CBP has been testing drones in US/ Canada border regions (Canwest News Service, 2007). CBP officials credit their drones with ‘helping bust 15,000 lbs of pot and 4,000 illegal immigrants’ (Gilson, 2010). In the words of a

defense executive: ‘It is quite easy to envision a future in which (UAVs), unaffected by pilot fatigue, provide 24–7 border and port surveillance to protect against terrorist intrusion … Other examples [of possible uses] are limited only by our imagination’ (McCullagh, 2006).

Surveillence in the US most directly affects and targets marginalized people. Drones only serve to exacerbate this. Cyril 15(Malika Amala, reporter, April 2015, “Black America’s State of Surveillance”, http://www.progressive.org/news/2015/03/188074/black-americas-state-surveillance)As local law enforcement agencies increasingly adopt surveillance technologies, they use them in three

primary ways: to listen in on specific conversations on and offline; to observe daily movements of individuals and groups; and to observe data trends. Police departments like Bratton’s aim to use sophisticated technologies to do all three. They will use technologies like license plate readers, which the Electronic Frontier Foundation found to be disproportionately used in communities of color and communities in the process of being gentrified. They will use facial recognition, biometric scanning software, which the FBI has now rolled out as a national system, to be adopted by local police departments for any criminal justice purpose.

They intend to use body and dashboard cameras, which have been touted as an effective step toward accountability based on the

results of one study, yet storage and archiving procedures, among many other issues, remain unclear. They will use Stingray cellphone

interceptors. According to the ACLU, Stingray technology is an invasive cellphone surveillance device that mimics cellphone towers and sends out signals to

trick cellphones in the area into transmitting their locations and identifying information. When used to track a suspect’s cellphone, they also gather information about the phones of countless bystanders who happen to be nearby. The same is true of domestic drones, which are in increasing use by U.S. law enforcement to conduct routine aerial surveillance. While drones are currently unarmed, drone manufacturers are considering arming these remote-controlled aircraft with weapons like rubber bullets, tasers, and tear gas . They will use fusion centers. Originally designed to increase interagency collaboration for the purposes of counterterrorism, these have instead become the local arm of the intelligence community. According to Electronic Frontier Foundation, there are currently seventy-eight on record. They are the clearinghouse for increasingly used “suspicious activity reports”—described as “official documentation of observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity.” These reports and other collected data are often stored in massive databases like e-Verify and Prism. As anybody who’s ever dealt with gang databases

knows, it’s almost impossible to get off a federal or state database, even when the data collected is incorrect or no longer true. Predictive policing doesn’t just lead to racial and religious profiling—it relies on it. Just as stop and frisk legitimized an initial, unwarranted contact between police and people of color, almost 90 percent of whom turn out to be innocent of any crime, suspicious activities reporting and the dragnet approach of

fusion centers target communities of color. One review of such reports collected in Los Angeles shows approximately 75 percent were of people of color. This is the future of policing in America, and it should terrify you as much as it terrifies me. Unfortunately, it probably doesn’t, because my

life is at far greater risk than the lives of white Americans, especially those reporting on the issue in the media or advocating in the halls of power. One of the most terrifying aspects of high-tech surveillance is the invisibility of those it disproportionately impacts.

The NSA and FBI have engaged local law enforcement agencies and electronic surveillance technologies to spy on Muslims living in the United States. According to FBI training materials uncovered by Wired in 2011, the bureau taught agents to treat “mainstream” Muslims as supporters of terrorism, to view charitable donations by Muslims as “a funding mechanism for combat,” and to view Islam itself as a “Death Star” that must be destroyed if terrorism is to be contained. From New York City to Chicago and beyond, local law enforcement agencies have expanded unlawful and covert racial and religious profiling against Muslims not suspected of any crime. There is no national security reason to profile all Muslims. At the same time, almost 450,000 migrants are in detention facilities throughout the United States, including survivors of torture, asylum seekers, families with small children, and the elderly. Undocumented migrant communities enjoy few legal

protections, and are therefore subject to brutal policing practices, including illegal surveillance practices. According to the Sentencing Project, of the more than 2 million people incarcerated in the United States, more than 60 percent are racial and ethnic minorities. But by far, the widest net is cast over black communities. Black people alone represent 40 percent of those incarcerated. More black men are incarcerated than were held in slavery in 1850, on the eve of the Civil War. Lest some misinterpret that statistic as evidence of

greater criminality, a 2012 study confirms that black defendants are at least 30 percent more likely to be imprisoned than whites for the same crime. This is not a broken system, it is a system working perfectly as intended, to the detriment of all. The NSA could not have spied on millions of cellphones if it were not already spying on black people, Muslims, and migrants. As surveillance technologies are increasingly adopted and integrated by law enforcement agencies today, racial disparities are being made invisible by a media environment that has failed to tell the story of surveillance in the context of structural racism.

Modeling privacy rights advDomestic drones risks authoritarianism Compliance 13

(Complaince Campaign, Campaigning for a United States in compliance with its international obligations, October 24, 2013, “Police brutality, drone wars and international norms” https://compliancecampaign.wordpress.com/2013/10/24/drones-police-violence-and-international-norms/__)

The ACLU, however, notes that “U.S. law enforcement is greatly expanding its use of domestic drones for surveillance” and says that “rules must be put in place to ensure that we can enjoy the benefits of this new technology without bringing us closer to a ‘surveillance society’ in which our every move is monitored, tracked, recorded, and scrutinized by the government.” Drone manufacturers are also offering police the option of arming these flying robots with weapons like rubber bullets, Tasers, and tear gas, notes the ACLU. The group warns that drones should be deployed by law enforcement only with a warrant, in an emergency, or when there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific criminal act. Further,

“domestic drones should not be equipped with lethal or non-lethal weapons,” says the ACLU. Considering the growing proclivity of U.S. police forces to engage in lethal force against civilians at home, and the U.S. military’s troubling track record abroad, it could be said that the ACLU’s mild admonitions could be considered understated at best. The violence and impunity with which security forces operate are a clear danger to society both within the United States and overseas. Adding domestic drones to the arsenal of local police weapons is only inviting

further tragedy. Indeed, unless the American people and the world community begin to demand that the U.S. abides by the international norms that it demands of “rogue states” such as Syria or Iran, the United States will likely continue its slide into an authoritarian country in which human rights are cast aside as an irrelevant nuisance.

The plan revitalizes right to privacy and privacy law Calo 11

(M. Ryan, Director of Privacy and Robotics, Center for Internet and Society, December 12, 2011, “The Drone as Privacy Catalyst“64 Stan. L. Rev. Online 29 http://www.stanfordlawreview.org/online/drone-privacy-catalyst)

Associated today with the theatre of war, the widespread domestic use of drones for surveillance seems inevitable. Existing privacy law will not stand in its way. It may be tempting to conclude on this basis that drones will further erode our individual and collective privacy . Yet the opposite may happen. Drones may help restore our mental model of a privacy violation. They could be just the visceral jolt society needs to drag privacy law into the twenty-first century. Samuel Warren and Louis Brandeis knew what a privacy violation looked like: yellow journalists armed with newly developed “instantaneous photographs” splashing pictures of a respectable wedding on the pages of every newspaper.[1] Their influential 1890 article The Right To Privacy crystallized an image of technology-fueled excess, which the authors leveraged to jump-start privacy law in the United States. But what do privacy violations look like today? They tend to be hard to visualize. Maybe somewhere, in some distant server farm, the government correlates two pieces of disparate information. Maybe one online advertiser you have never heard of merges with another to share email lists. Perhaps a shopper’s purchase of an organic product increases the likelihood she is a Democrat just enough to cause her identity to be sold to a campaign. At most one can picture the occasional harmful

outcome; its mechanism remains obscure. It is hard to know exactly what role the inscrutability of privacy has played in the development of contemporary privacy law. But the law has clearly stalled. Tort recovery founders on the question of damages. Privacy statutes tend to respond to specific incidences or abuses: for instance, no provider of videos (broadly defined) may release customer rental

history because journalists once managed to procure a list of the videos enjoyed by a Supreme Court nominee. And it must be possible for officers practically to

glimpse the proverbial “lady in her sauna” before the Fourth Amendment places serious limits on the deployment of surveillance technology.[2] The development of American privacy law has been slow and uneven; the advancement of information technology has not. The result is a widening chasm between our collective and individual capacity to observe one another and the protections available to consumers and citizens under the law. We are only now, in 2011, revisiting The Electronic Communications Privacy Act, which controls the circumstances under which the government can intercept or access electronic communications such as emails. The Act was passed in 1986. At the time, lawmakers’ kids were trading in their Walkman for a Discman. Al Gore had only just invented the Internet.[3] Recent shifts in technology and attendant changes to business practices have not led to similar shifts in privacy law, at least not on the order of 1890. Computers, the Internet, RFID, GPS, biometrics, facial recognition—none of these developments has created the same sea change in privacy thinking.

One might reasonably wonder whether we will ever have another Warren and Brandeis moment, whether any technology will dramatize the need to rethink the very nature of privacy law. One good candidate is the drone. In routine use by today’s military, these unmanned aircraft systems threaten to perfect the art of surveillance. Drones are capable of finding or following a specific person. They can fly patterns in search of suspicious activities or hover over a location in wait. Some are as small as birds or insects, others as big as blimps. In addition to high-resolution cameras and microphones, drones can be equipped with thermal imaging and the capacity to intercept wireless

communications. That drones will see widespread domestic use seems inevitable. They represent an efficient and cost-effective alternative to helicopters and airplanes. Police, firefighters, and geologists will—and do—use drones for surveillance and research. But drones will not be limited to government or scientific uses. The private sector has incentives to use drones as well. The media, in particular, could make widespread use of drones to cover unfolding police activity or traffic stories. Imagine what drones would do for the lucrative paparazzi industry, especially coupled with commercially available facial recognition technology. You might think drones would already be ubiquitous. There are, however, Federal Aviation Administration restrictions on the use of unmanned aircraft systems, restrictions that date back several years. Some public agencies have petitioned for waiver. Customs and Border Protection uses drones to police our borders. Recently the state of Oklahoma asked the FAA for a blanket waiver of eighty miles of airspace. Going forward, waiver may not be necessary. The FAA faces increasing pressure to relax its restrictions and is considering rulemaking to

reexamine drone use in domestic airspace.[4] Agency rules impede the use of drones for now; United States privacy law does not. There is very little in our privacy law that would prohibit the use of drones within our borders. Citizens do not generally enjoy a reasonable expectation of privacy in public, nor even in the portions of their property visible from a public vantage. In 1986, the Supreme Court found no search where local police flew over the defendant’s backyard with a private plane.[5] A few years later, the Court admitted evidence spotted by an officer in a helicopter looking through two missing roof panels in a

greenhouse.[6] Neither the Constitution nor common law appears to prohibit police or the media from routinely operating surveillance drones in urban and other environments .[7] If anything, observations by drones may occasion less scrutiny than manned aerial vehicles. Several prominent cases, and a significant body of scholarship, reflect the view that no privacy violation has occurred unless and until a human observes a person, object, or attribute.[8] Just as a dog might sniff packages and alert an officer only in the presence of contraband, so might a

drone scan for various chemicals or heat signatures and alert an officer only upon spotting the telltale signs of drug production.[9] In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones threaten our dwindling individual and collective privacy. But unlike the debates of recent decades, I think these arguments will gain serious traction among courts, regulators, and the general public. I have in mind the effect on citizens of drones flying around United States cities. These machines are disquieting. Virtually any robot can engender a certain amount of discomfort, let alone one associated in the mind of the average American with spy operations or targeted killing. If you will pardon the inevitable reference to 1984, George Orwell specifically describes small flying devices that roam neighborhoods and peer into windows. Yet one need not travel to Orwell’s Oceania—or the offices of our own Defense Advanced Research Projects Agency—to encounter one of these machines. You could travel to one of several counties where American police officers are presently

putting this technology through its paces. The parallels to The Right to Privacy are also acute. Once journalists needed to convince high society to pose for a photograph. New technologies made it possible for a journalist automatically to “snap” a picture, which in turn led to salacious news coverage . Americans in 1890 could just picture that tweedy journalist in the bushes of a posh wedding, hear the slap of the newspaper the next day, and see the mortified look of the bridal party in the cover art.

Today’s police have to follow hunches, cultivate informants, subpoena ATM camera footage; journalists must ghost about the restaurant or party of the moment. Tomorrow’s police and journalists might sit in an office or vehicle as their metal agents methodically search for interesting behavior to record and relay. Americans can visualize and experience this activity as a physical violation of their privacy. There are ways that drones might be introduced without this effect. Previous military technology has found its way into domestic use through an acclimation process: it is used in large events requiring heightened security, for instance, and then simply left in place.[10] We could delay public awareness of drones by limiting use to those that are capable of observing the ground without detection. But these efforts would take a knowing, coordinated effort by the government. The more likely scenario, as suggested by Oklahoma’s plan, is one in which FAA restrictions relax and private and public drones quickly fill the sky. Daniel Solove has argued that the proper metaphor for contemporary privacy violations is not the Big Brother of Orwell’s 1984, but the inscrutable courts of Franz Kafka’s The Trial.[11] I agree, and

believe that the lack of a coherent mental model of privacy harm helps account for the lag between the advancement of technology and privacy law. There is no story, no vivid and specific instance of a paradigmatic privacy violation in a

digital universe, upon which citizens and lawmakers can premise their concern. Drones and other robots have the potential to restore that mental model. They represent the cold, technological embodiment of observation. Unlike, say, NSA network surveillance or commercial data brokerage, government or industry surveillance of the populace with drones would be visible and highly salient. People would feel observed, regardless of how or whether the information was actually used. The resulting backlash could force us to reexamine not merely the use of drones to observe, but the doctrines that today permit this use.

Widespread Drone use destroys 4th amendment rightsLeahy 13,

(Patrick, US Senator of Iowa, March 20th 2013, “THE FUTURE OF DRONES IN AMERICA: LAW ENFORCEMENT AND PRIVACY CONSIDERATIONS”, http://www.judiciary.senate.gov/imo/media/doc/CHRG-113shrg81775.pdf )

With the Federal Aviation Administration estimating that as many as 30,000 drones like this will be operating in the national airspace by the end of this decade, I think we have to carefully consider the policy implications of this fast-emerging technology. I know that we are going to hear a lot of things about the unique advantages of using unmanned aircraft as opposed to manned vehicles. Drones are able to carry out arduous and dangerous tasks that would otherwise be expensive or difficult for a human to undertake. For example, in addition to law enforcement surveillance, drones will potentially be used for scientific experiments, agricultural research, geological surveying, pipeline maintenance, and search-and-rescue operations. So there are many valuable uses, but at the same time, the use of unmanned aircraft raises serious concerns about the impact on the constitutional and privacy rights of all Americans. The Department of Homeland Security, through Customs and Border Protection, already operates modified, unarmed drones to patrol rural parts of our northern and southern borders, as well as to support drug interdiction efforts by law enforcement. A number of local law enforcement agencies have begun to explore using drones to assist with operational surveillance. This raises a number of questions regarding the adequacy of current privacy laws and the scope of existing Fourth Amendment jurisprudence. When is it appropriate for law enforcement to use a drone, and for what purposes? Under what circumstances should law enforcement be required to first obtain a search warrant? And then what should be done with the data that is collected and how long should it be kept? And although no drones operating in the U.S. are yet weaponized, I am advised, should law enforcement be permitted to equip unmanned aircraft with non-lethal tools such as tear gas or pepper spray? My concerns about the domestic use of drones extend beyond Government and law enforcement. Before we allow widespread use of drones in the domestic airspace, we have to carefully consider the impact on the privacy rights of Americans. Just last week, we were reminded how one company’s push to gather data on Americans led vast over-collection and potential privacy violations. Similarly, a simple scan of amateur videos on the Internet demonstrates how prevalent drone technology is becoming among private citizens. Small, quiet unmanned aircraft can easily be built or purchased online for only a few hundred dollars and then equipped with high-definition video cameras while flying in areas impossible for manned aircraft to operate without being detected. It is not hard to imagine the serious privacy problems that this type of technology could cause. In a State like mine, in Vermont, where we protect and guard our privacy, this is raising some very serious questions from people from the far right to the far left.

Privacy is a Human RightSiddique 13

( Haroon, news reporter on the Guardian, December 26th 2013, ”Internet privacy as important as human rights, says UN's Navi Pillay”, http://www.theguardian.com/world/2013/dec/26/un-navi-pillay-internet-privacy )

The UN human rights chief, Navi Pillay, has compared the uproar in the international community caused by revelations of mass surveillance with the collective response that helped bring down the apartheid regime in South Africa. Pillay, the first non-white woman to serve as a high-court judge in South Africa, made the comments in an interview with Sir Tim Berners-Lee on a special edition of BBC Radio 4's Today programme, which the inventor of the world wide web was guest editing. Pillay has been asked by the UN to prepare a report on protection of the right to privacy, in the wake of the former National Security Agency analyst Edward Snowden leaking classified documents about UK and US spying and the collection of personal data. The former international criminal court judge said her encounters with serious human rights abuses, which included serving on the Rwanda tribunal, did not make her take online privacy less seriously. "I don't grade human rights," she said. "I feel I have to look after and promote the rights of all persons. I'm not put off by the lifetime experience of violations I have seen." She said apartheid ended in South Africa principally because the international community co-operated to denounce it, adding: "Combined and collective action by everybody can end serious violations of human rights … That experience inspires me to go on and address the issue of internet [privacy], which right now is extremely troubling because the revelations of surveillance have implications for human rights … People are really afraid that all their personal details are being used in violation of traditional national protections." The UN general assembly unanimously voted last week to adopt a resolution, introduced by Germany and Brazil, stating that "the same rights that people have offline must also be protected online, including the right to privacy". Brazil's president, Dilma Rousseff, and the German chancellor, Angela Merkel, were among those spied on, according to the documents leaked by Snowden. The resolution called on the 193 UN member states "to review their procedures, practices and legislation regarding the surveillance of communications, their interception and collection of personal data, with a view to upholding the right to privacy of all their obligations under international human rights law". It also directed Pillay to publish a report on the protection and promotion of privacy "in the context of domestic and extraterritorial surveillance ... including on a mass scale". She told Berners-Lee it was "very important that governments now want to discuss the matters of mass surveillance and right to privacy in a serious way". Berners-Lee has warned that online surveillance undermines confidence in the internet, and last week published an open letter, with more than 100 free speech groups and leading activists, to protest against the routine interception of data by governments around the world.

The United States’s constitution is modelled globallyGinsburg et al. 12 (Tom Ginsburg, Zachary Elkins, and James Melton, Tom Ginsburg is Professor at the University of Chicago Law School. He holds B.A., J.D. and Ph.D. degrees from the University of California at Berkeley. His books include Rule By Law: The Politics of Courts in Authoritarian Regimes (2008) and Judicial Review in New Democracies (2003), which won the American Political Science Association’s C. Herman Pritchett Award for best book on law and courts. He currently co-directs the Comparative Constitutions Project at Illinois, and is working on a book on constitutional endurance,

“Comments on Law and Versteeg’s’ The Declining Influence of the United States Constitution” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2486776)

This introduces some special analytic problems. One aspect of this problem is that the contexts in which any two constitutions are written may be radically different, and, as a result, assessments of similarity between an eighteenth-century document and a twentieth-century document are complicated, to say the least. Comparing older and modern documents against a set of modern rights essentially measures whether the old document adopted or anticipated modern fashions. Such a comparison is not a good measure of the older document's influence. How might we assess the influence of older documents and, for that matter, the similarity of constitutions across contexts? One way is to examine constitutional development along only those features that would be theoretically "possible" to adopt in a given era. It would be unfair to expect an eighteenth-century constitution to have provisions for consumer or environmental rights; and conversely, we should not evaluate modern constitutions on whether they allow slavery. Operationally, then, one way to refine a measure of similarity might be to limit the set of rights under consideration to those features that had been adopted by some percentage (say, twenty-five percent) of constitutions in each era. Call this set of rights "common rights"-that is, rights that are common to each temporal context. The question is whether the set of rights selected by the U.S. Constitution's framers remains more influential than do the other sets of rights in circulation during the same time that the framers did not select. After all, even for those drafting constitutions in the nineteenth century, the rights enshrined in the U.S. Constitution offered just one set of a larger universe of rights. New Latin American countries and democratizing states in Europe had several different "menus" to choose from, such as those in the series of French charters starting in 1791 or that in the widely disseminated Spanish Constitution of 1812, known as the Cidiz Constitution.19 These menus, or models, were decidedly different with respect to their content. Of the twenty-three common rights in general circulation, only eleven in both the U.S. Constitution and French Constitution of 1791 "match," meaning that both constitutions either exclude or include the right. The other twelve rights are included in one constitution but not the other. The number of matching common rights for the U.S. and Cidiz constitutions is similar. This scattered distribution of rights is helpful analytically: One can assess the influence of one "menu" of rights against real alternatives. One way to do this is by following the methodology we describe above-that is, comparing measures of similarity composed of items common across all eras (or, in our operationalization, rights prevalent in at least twenty-five percent of constitutions in each half century). We can then see how well the U.S. menu of rights tracks across time, compared to its alternatives. Figure 3 presents an analysis of the similarity of the U.S. Constitution to others with respect to common rights. As in Figure 2, we analyze two samples: one of Latin American constitutions and one drawn from all constitutions. These graphs can be contrasted against those in Figure 2, which replicate and extend Law and Versteeg's analysis by plotting the similarity of each set of constitutions to the U.S. Constitution across all rights. We see that, as expected, in Figure 2, constitutions appear increasingly dissimilar to the U.S. Constitution, suggesting that, on average, constitutions have evolved and absorbed modern rights. Figure 3, however, plots the similarity of constitutions to the U.S. Constitution across those rights that were popular (that is, found in at least twenty-five percent of constitutions) before 1850. As we suggest above, this metric better captures the influence of the U.S. Constitution. We see that across this set of rights, the U.S. Constitution is actually increasingly similar to other constitutions over time.

U.S.’s Constitution modelled globally – small laws proveGinsburg et al. 12 (Tom Ginsburg, Zachary Elkins, and James Melton, Tom Ginsburg is Professor at the University of Chicago Law School. He holds B.A., J.D. and Ph.D. degrees from the University of California at Berkeley. His books include Rule By Law: The Politics of Courts in Authoritarian Regimes (2008) and Judicial Review in New Democracies (2003), which won the American Political Science Association’s C. Herman Pritchett Award for best book on law and courts. He currently co-directs the Comparative Constitutions Project at Illinois, and is working on a book on constitutional endurance, “Comments on Law and Versteeg’s’ The Declining Influence of the United States Constitution” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2486776)

V SOME SIGNATURE, IF LESS CENTRAL, ELEMENTS OF U.S. INFLUENCE We close with a regrettably short discussion of some arcane elements of the U.S. Constitution,

which may seem inconsequential. But it is in part because of their triviality-or at least their arbitrary selection by the founders-that these elements tell us something about influence. To understand why, consider another function of constitutional

text: simple coordination. David Strauss has noted that "it is more important that some things be settled than that they be settled right." 20 Many types of constitutional rules have little distributive consequence. Nevertheless, some rule must be adopted. In such cases, the rule from one constitution simply may be more likely to be emulated by constitutional drafters , further increasing similarity between constitutions.21 For example, many constitutions have a minimum age requirement to hold certain offices, an innovation of the U.S. Constitution . Article II requires one to be at least thirty-five years old to become president. 22 This number has been remarkably sticky, having been borrowed by a plurality of constitutions in our sample (thirty percent of the 534 constitutions that specify an age limit for the head of state). 2 3 Similarly, the U.S. age limit (twenty-five) for serving in the lower house of the legislature remains the

most popular number globally (thirty-seven percent of the 565 constitutions that specify an age limit for members of the lower house). 24 Despite a significant increase in life expectancies since the eighteenth century, the U.S. "solution" has remained in place. This is an example of constitutional drafters failing to modernize and suggests evidence of textual influence . Consider another example: term limits. Most presidential constitutions have had term limits. As we show in our study of term limits, the

most popular form historically was a version in which the officer could serve for multiple nonconsecutive terms but no consecutive terms. 25 However, the U.S. version, which was not codified until the Twenty-Second Amendment was ratified in 1951, has become the single most popular option .26 This is another example of increasing U.S. influence over time, in which modernization has moved in the direction of the U.S. model. As a final example, we note that most constitutions followed the American approach of using preambles. In an early working paper, we find that the expression "We the People" is the single most popular phrase found in national preambles since 1789 and that its use is increasing in popularity over time. 27 We do not have space for a complete analysis of what aspects of constitutions are most likely to exhibit declining or increasing similarity over time. Our only point is that rights may not be completely representative of

constitutional influence or similarity. To their credit, Law and Versteeg push their analysis beyond rights, but their analysis still leaves many areas of constitutions untouched. After all, constitutional drafters are expansive, and increasingly so, in what they try to regulate. Other features of the U.S. Constitution may well be different, or they may show more enduring influence.

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries. In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream. The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India.

Privacy is key to defending the Fourth Amendment and vice versa; warrantless search devices impede privacyOhm 12 (Paul Ohm, Paul Ohm is an Associate Professor and Associate Dean for Academic Affairs at the University of Colorado Law School. He specializes in information privacy, computer crime law, intellectual property, and criminal procedure, “The Fourth Amendment in a World Without Privacy” http://mississippilawjournal.org/wp-content/uploads/2012/07/16-Ohm_FINAL.pdf)

No more Expectations of Privacy In Katz, the Supreme Court embraced a new doctrine of the Fourth Amendment built on privacy. This took the form of the majority’s pronouncement that “the Fourth Amendment protects people, not places,”56

and Justice Harlan’s “reasonable expectation of privacy” test in a concurring opinion, which was later embraced by the Court as the test for the meaning of search within the amendment. Although the rest of this Part will examine indepth what happens to a privacy-centric Fourth Amendment in a world without privacy, the punch line is both easy to state and preordained almost to the point of being tautologicalin a world without privacy, a Fourth Amendment built around reasonable expectations of privacy will no longer apply. Specifically, the courts have given the reasonable expectation of privacy test three additional elaborations, and each suggests that when courts face fact patterns arising from the rise of the surveillance society, they might hold that the Fourth Amendment does not apply. 1. Assumption of Risk According to the Supreme Court, an individual takes the risk, in revealing his affairs to another, that the information will be conveyed by that

person to the Government. . . . [E]ven if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.59 This reasoning has been applied in at least two important and broad contexts, which are both implicated by the surveillance society: the false friends rule and the third-party doctrine. Under the false friends rule, exemplified by cases like Hoffa v. United States,60 we share secrets with other people at our own risk, and if the people we think are trusted confidants turn out instead to be government agents wearing a wire, we have only ourselves to blame, and the Constitution provides no relief.61 The reasoning has extended not only to friends but also to the companies we use for essential services. The Supreme Court has declared that the Fourth Amendment does not apply to our bank’s records of our

financial transactions,62 or to our phone company’s lists of numbers we have dialed.63 Notice how this rule automatically expands police power to some of the new forms of private surveillance. Consider for example the location records people now share regularly with Loopt64 and Foursquare.65 2. Knowing Exposure Because we share

our location consensually with companies like these, courts are likely to treat this information as constitutionally unprotected under the reasoning of the assumption of risk cases. Under the knowing exposure rule, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”66 The Supreme Court has used this reasoning to rule that the police can track a car with an electronic beeper as it moves around city streets, because the car remains on public thoroughfares.67 It has also used the concept of knowing exposure to deem outside the Fourth Amendment the use by the police of airplanes and helicopters to look at the open fields and even the curtilage next to a person’s home.68 Knowing exposure means that some of the information shared online through private services may be accessed by the police, because new online services obscure the already blurry line between what we treat as private and public. Consider for example what you say on your Facebook account. Is a Facebook account a public or private space? Does it depend on the number of friends you have or the configuration of your privacy settings? Complicating this considerably is Facebook’s ongoing war with its users about those privacy settings and, in particular, what the default settings should be. A court could

reasonably hold that some of the content posted to Facebook has been knowingly exposed to the public and, following conventional Fourth Amendment law, rule that it may be obtained by the police without a warrant . 3. General Public Use Finally, the general public use rule comes from two cases, Dow Chemical69 and

Kyllo.70 According to this rule, the police may deploy powerful surveillance devices to track suspects without a warrant so long as the tool is generally accessible to the public. In Dow Chemical, the court held that a $22,000 camera qualified under this rule.71 Although the Court backtracked a bit in Kyllo, finding a $1000 thermal heat-imaging machine did not qualify as one in general public use, it refused to overrule Dow Chemical.72 As the power of private surveillance increases, the devices and systems they create may be available to the police without process because of this rule. Consider for example powerful reidentification techniques. Some day, private companies may develop a tool to convert the supposedly anonymous

comments on a public message board into the commenter’s true identity by cross-referencing the attributes of the communication with rich outside databases using powerful reidentification techniques. Whether the police could use technology like this without a warrant may turn on the general public use test, which means a warrant may not be needed once reidentification tools become cheap and widespread in ways that they would not have been; records of their behavior would be created and retained when once they would have been never created or destroyed; and traditional forms of surveillance would occur much more thoroughly and efficiently than they have before.

Fourth amendment declining now, allowing for a private sector-led police stateOhm 12 (Paul Ohm, Paul Ohm is an Associate Professor and Associate Dean for Academic Affairs at the University of Colorado Law School. He specializes in information privacy, computer crime law, intellectual property, and criminal procedure, “The Fourth Amendment in a World Without Privacy” http://mississippilawjournal.org/wp-content/uploads/2012/07/16-Ohm_FINAL.pdf)

The diminished Fourth Amendment While some legal scholars have argued that we abandon the reasonable expectation of privacy test, and still others have

anchored the Fourth Amendment in principles other than privacy, none of these scholars has considered the central question of this Article: what if we are headed for a world without privacy? This shift in focus gives a different, more urgent impetus to some of the prescriptions that others have offered, but it also gives rise to the need for

new prescriptions. In a world without privacy, a Fourth Amendment focused on privacy becomes nearly a dead letter. Today’s Fourth Amendment has been built around the reasonable expectation of privacy test, but no expectation of privacy will be deemed reasonable in a world without privacy. Even worse, the great bulwark of

the Fourth Amendment, probable cause and a warrant, will become much less important as pervasive monitoring and record collection will give the police probable cause most of the time. The diminishment of the Fourth Amendment will change police behavior. Police agencies will begin to abdicate their traditional role as

conductor of surveillance, because it will be eclipsed by the powerful new systems of private surveillance. The FBI and other law enforcement agencies will shift from being active producers of surveillance to passive consumers, essentially outsourcing all of their surveillance activities to private third parties , ones who are not only ungoverned by the state action requirements of the Fourth Amendment, but also who have honed the ability to convince private citizens to agree to be watched. It is likely, however, that courts will resist this change, refusing to accept a nugatory Fourth Amendment. To save the Fourth Amendment, they will transform it, abandoning the reasonable expectation of privacy test. To replace it, courts may turn to legal scholarship, which to date has failed to fully elaborate what should come next.

Decreases in the privacy of society is leading to an increased reliance on the private-sectorOhm 12 (Paul Ohm, Paul Ohm is an Associate Professor and Associate Dean for Academic Affairs at the University of Colorado Law School. He specializes in information privacy, computer crime law, intellectual property, and criminal procedure, “The Fourth Amendment in a World Without Privacy” http://mississippilawjournal.org/wp-content/uploads/2012/07/16-Ohm_FINAL.pdf)

Before examining what the rise of the surveillance society means for the Fourth Amendment, consider what it means for the practicalities of policing. We should expect a major shift in the center of activity of crime fighting from the police to private industry . The surveillance society will greatly diminish the importance of self-help policing. In constitutional criminal procedure, the difference between self-help policing and assisted policing has received little attention, because almost all court attention has focused on the former. In the near century since Olmstead,32 almost all of the cases discussing what new technology means for the Fourth Amendment have involved police self-help and home-grown tools. The police inserted the wires into the telephone lines in Olmstead,33 mounted the recording device in Katz,34 deployed its own microphones in Goldman35 and Silverman,36 chartered aircraft for their own use in Ciraolo37 and Dow Chemical,38 and installed their own tracking beepers in Karo39 and Knotts.40 Future students of the amendment are likely to marvel at these historical relics, trying to imagine a time when the FBI was forced to build its own tools and collect its own data. It will likely seem a far cry from the FBI they know: agents sitting in offices, acting as a central clearing house for the observations of private industry, mining their way through mountains of data

collected by other people and for other purposes. It is as if today’s FBI has developed a sophisticated surveillance research-and-development arm with field offices named Apple, Google, Facebook, Comcast, and AT&T.41 On the surface, these private labs seem similar to FBI labs with big buildings and smart engineers. But

peel back a layer and it is obvious these labs can do something important that no FBI lab could ever hope to doconvince the surveillance targets of the world to consensually adopt their surveillance technologies, acting as a neat end-around circumventing the Fourth Amendment .42 Although few scholars have noted what the end of self-help policing means for the Fourth

Amendment, some have noted the descriptive shift in the amount the police and intelligence community rely on the fruits of private surveillance. Jon Michaels has carefully tracked the increasing reliance on technological advances and private surveillance by the intelligence community .43 Others have noted how much the CIA, FBI, and Defense Department rely on the services of data aggregators like ChoicePoint .44 As proof of the shift away from a self-help police force, consider the annual Wiretap Report. By statute, the Administrative Office of the United States Courts is charged with issuing a report each year that tallies the number of applications for court-ordered wiretaps in state and federal court and requires a small number of summary statistics about each jurisdiction.45 One table of the report breaks down wiretap orders by the “type of surveillance used,” oral (voice), wire (telephone), electronic (computer network).46 Some have expressed surprise, even suspicion, at the low number of electronic orders granted every year. For example, in calendar year 2010, out of 2,311 wiretaps ordered nationwide, only sixteen involved electronic surveillance (defined as “Digital Pager, Fax, and Computer”), or approximately 0.7%.47 This is not an outlier, as indicated by Figure 1, which plots both the total number and percentage of all wiretaps that involved electronic surveillance for the past fifteen years. Figure 1 provides a compelling visual image of the decline of self-help policing. Clearly, the number of court ordered wiretaps involving electronic evidence dropped precipitously at the turn of the century. Chris Soghoian, a close watcher of these statistics, speculates that this is proof of the declining importance of fax transmissions in criminal surveillance, which are included in this reporting category.49 But the drop since 2000 is nearly as pronounced, with a near linear decline from 2000 (eighty-nine intercepts, nearly eight percent of all)50 to 2006 (thirteen intercepts, 0.76%).51 Since 2006, the nation’s courts have authorized fewer than twenty wiretaps of digital networks a year, never topping one percent of all orders in that time span.52 The dramatic

decrease is almost certainly not an indication that criminals use computer networks less or that the police rely less on network surveillance. Instead, it likely represents a shift in police tactics away from self-help. Today, it makes little sense for the police to engage in court-ordered wiretapping. Not only is it easier to secure private cooperation than judicial sanction, but also the fruits of private surveillance are simply betterfed as they are by our sensor-laden world and empowered by consensualsharing. Figure 1 is a

bellwether not an outlier. With each passing year, the police will learn to borrow and beg rather than build. Our mental

image of the FBI agent conducting surveillance, wearing headphones in a white van parked on the curb, clipping alligator clips to telephone wires, and working with a white-coated

FBI scientist will soon be replaced by an agent sitting in his office, hitting the refresh button on his web browser, and reading the latest log file dump sent from private industry. Consider one final example. In the late 1990s, the FBI faced a firestorm surrounding its Carnivore systema piece of software developed in-house and designed to perform electronic wiretapping on digital networksin technical terms, a filtering packet sniffer.53 The public story is well known: the press dug deep, the public complained, and Congress raged, ultimately passing laws requiring better reporting about the FBI’s use of the system.54 The less-well-known denouement is also telling: a few years after the controversy, the FBI abandoned Carnivore’s successor, realizing that the private computer security industry had designed better filtering packet sniffers than the FBI could do on its own. This shift is a herald of

the shift in role and responsibility for surveillance from FBI labs to private companies, which we will see repeated constantly in the years to come.

Domestic drones = panopticonCavoukian 12(Ann, Ph.D., Information & Privacy Commissioner, August 2012, “Privacy and Drones: Unmanned Aerial Vehicles,” http://www.publicsafety.gc.ca/lbrr/archives/cnmcs-plcng/cn29822-eng.pdf)

The Panopticon prison design was the creation of English philosopher and social theorist Jeremy Bentham. The design consisted of a circular structure with an “inspection house” at its centre. From this vantage point, managers or guards of the institution were easily able to watch (and control) the behaviour of the inmates stationed around the perimeter. Bentham intended the basic plan to have widespread application. Bentham’s initial concept was later

invoked by Michel Foucault (in Discipline and Punish: The Birth of the Prison) as a metaphor for modern “disciplinary” societies and their pervasive inclination to observe and normalize. Foucault proposed that not only prisons, but all hierarchical structures (i.e., armies, schools, hospitals, and factories) have evolved through history to resemble Bentham’s Panopticon. Our societies are becoming increasingly acclimatized to panoptic surveillance by closed-circuit television (CCTV) cameras in both public and private spaces, accepting that law enforcement agencies have a legitimate and compelling need to engage in authorized surveillance. However, there is also the potential for serious violations of privacy to arise from the misuse of this technology. Thus we set out video surveillance guidelines to control potential excesses of such

technology.1 Echoing Bentham and Foucault, the increased use of drones or “unmanned aerial vehicles” has the potential to result in the widespread deployment of panoptic structures that may persist invisibly throughout society. These developments oblige us to revisit fundamental issues regarding our expectations of privacy. We are called upon to once again fortify our defence of privacy, including respect for activities that occur in public spaces, in order to ensure that this central tenet of freedom remains protected in a manner that is consistent with our shared values.

UAVs destroy privacy OLIVITO 2013

(Jonathan Olivito, JD canidate Ohio State Univ. Moritz College of Law, December 8, 2013 “Beyond the Fourth Amendment: Limiting Drone Surveillance Through the Constitutional Right to Informational Privacy” http://moritzlaw.osu.edu/students/groups/oslj/files/2013/12/8-Olivito.pdf)

In conjunction with the recent proliferation of drones operating domestically, commentators have begun to recognize the serious potential for privacy invasions posed by widespread drone use.41 To illuminate why

drones pose such a grave danger to privacy in the United States, the following sections explore the physical capabilities, current uses,

and potential uses of drones. A. Physical Capabilities of Drones Government Agencies and businesses of all varieties envision using drones for a multitude of purposes. Drones can serve in such a broad range of functions precisely because of the diversity of drone sizes and

designs.42 Complementing the diversity of drone designs are the myriad sensors, cameras, and other surveillance equipment that operators can install on drones. Drones vary in size from the miniature to the gargantuan. Measuring 6.5 inches and weighing in at nineteen grams, AeroVironment’s Nano Hummingbird might be the most diminutive drone at present.43 More typically, however, small drones have wingspans of ten feet or less and weigh between four and twenty pounds.44 Operating at speeds of less than 100 knots and at altitudes below 500 feet, small drones often run on batteries and can stay airborne for as long as two hours.45 Large drones have wingspans of up to 150 feet and can weigh over 30,000 pounds.46 These systems can operate at altitudes of up to 65,000 feet, cruise at speeds of up to 320 knots, and remain airborne without refueling for anywhere from thirty-five hours to four days.47 Small drones enjoy stealth and maneuverability, making them ideal for urban surveillance operations.48 Because many small drones

operate on electricity, they produce very little noise.49 Additionally, the relatively slow cruising speeds of small drones permit them to loiter over a surveillance target for extended periods of time .50 Some drones do not ever need to loiter, as certain drone designs permit the aircraft to both hover and fly normally.51 In order to extend flight time, other drones engage in “perch-and-stare” surveillance.52 Most pertinent to privacy concerns, drones can be equipped with a wide variety of surveillance equipment.53 Civilian operators can easily install cameras and recorders with high-powered zoom lenses on drones. Certain cameras have been developed specifically for civilian UAS

use. The gimbal camera, for example, automatically remains focused on a single object even as the drone continues on its flight path.54 More worrisome to privacy advocates, drones can be equipped with infrared and ultraviolet imaging devices ,55 seethrough imaging (radar technology),56 and distributed video systems.57 Drones engaged in perch-and-stare surveillance might also utilize acoustical eavesdropping devices, such as conventional microphones or laser optical microphones.58 In terms of software, drones operating in the near future will likely utilize video processing systems,

including face and body recognition technology.59 Finally, civilian drones, like their military counterparts, can carry weaponry. Although lethal weapons are almost certainly out of the question, law enforcement drones might soon pack rubber bullets and tear gas.60 Taking full advantage of drone capabilities, domestic users have already put drones to work in

a variety of capacities. Although domestic drones have numerous beneficial applications, they also carry the potential for abuse. Exacerbating this concern, government agencies and private operators intend to employ drones for so many purposes that drones will someday form a ubiquitous part of life. Even in the immediate future, however, targeted and inadvertent UAS surveillance poses a threat to privacy.

AT Squo solves privacy Not enough protection against government drone surveillanceOLIVITO 2013

(Jonathan Olivito, JD canidate Ohio State Univ. Moritz College of Law, December 8, 2013 “Beyond the Fourth Amendment: Limiting Drone Surveillance Through the Constitutional Right to Informational Privacy” http://moritzlaw.osu.edu/students/groups/oslj/files/2013/12/8-Olivito.pdf)

As 2015 and widespread domestic drone use draw closer, Americans currently have at their disposal only a handful of legal protections to guard against invasive government drone surveillance. Confronted with drone surveillance perpetrated by private businesses or other nongovernmental actors, individuals might rely on tort law claims73 including nuisance,74 trespass,75 intrusion upon seclusion,76 and public exposure of private facts.77 However, torts typically will not constitute an effective recourse to drone privacy invasions committed by government entities, due to sovereign-immunity principles. As such, the potential safeguards against government drone surveillance include statutory and regulatory protections and the Fourth Amendment. Currently, both of these options fail to provide satisfactory privacy protections, especially in the context of information gathered by drones in public places.

4th amendment weaker after War on Terror Vagle 2015

(Jeffrey L. Vagle, University of Penn. Law School, Winter 2015 “Furtive encryption: Power, Trusts, and the COnstitituional Cost of Collective Surveillance” V. 90 Iss. 1 Indiana Law Journal http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11134&context=ilj)

The “War on Terror” that followed the catastrophic events of September 11, 2001, increased the frequency of suspicionless searches by law enforcement, including contexts such as searches at entrances to subways, on

ferries, near political conventions, near sports arenas, at protest rallies, and around water reservoirs.148 In particular, the genuine problem of global terrorism and the government’s duty to provide for national security have added even more momentum to the courts’ consistent trend toward analyzing Fourth Amendment problems from the government’s point of view.149 This is not to say that courts routinely adopt the government’s arguments in Fourth Amendment cases,

but rather that over the past three decades, the Supreme Court has been formulating Fourth Amendment doctrine from the perspective of the government or police agency engaged in searches or seizures.150 This is

contrary to the Court’s orientation toward the individual in Katz and turns Fourth Amendment doctrine on its head; the Fourth Amendment was designed to protect citizens from unjustified and arbitrary government intrusions, not to facilitate the government’s needs.151 This core constitutional tenet is especially important when addressing government collective-surveillance programs in the face of government claims of national security necessity. Current Fourth Amendment jurisprudence has been steadily moving toward analysis that begins from the government’s perspective, a trend made plain in post-Katz cases that complain of the burden placed on government by Fourth Amendment requirements.152 This doctrinal trend has been even more prevalent in cases argued after September 11,

2001, where the government argues that the needs of national security require an even freer hand unencumbered by naïve Fourth Amendment analysis made quaint by the global war on terrorism.

Privacy is easily infiltrated by governmentVagle 2015

(Jeffrey L. Vagle, University of Penn. Law School, Winter 2015 “Furtive encryption: Power, Trusts, and the Constitutional Cost of Collective Surveillance” V. 90 Iss. 1 Indiana Law Journal http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11134&context=ilj)

Government use of advances in information technologies to collect and analyze ever larger and more detailed citizen databases should come as no surprise. Questions of efficacy aside for the moment, the State’s increased use

of data collection and analysis is a predictable result of the continued realization of Moore’s Law.182 Furthermore, this growth is not a new phenomenon. Governments used data collection and analysis long before the post-2001 counterterrorism efforts to accomplish such well-established goals as crime prevention, delivery of welfare benefits, and protection of citizens’ rights.183 The government, therefore, has many compelling reasons to collect and store information about its citizens, and the increasing ease with which we communicate over the Internet has made it a natural tool for

information gathering.184 With the ability to collect and store virtually all information communicated over the Internet, the government could apply analytical tools to reveal a very detailed portrait of who we are based on what we buy, what organizations we belong to, what we read, and what we watch.185 The base analytical tools made available under existing

Fourth Amendment doctrine are sound but have been gradually (and artificially) limited to a characterization of the underlying constitutional issues that have little basis in the Framers’ intent. This characterization, focusing on an ill-defined concept of privacy and taken from the perspective of the government agent engaged in search and seizure, has been redefined from a prohibition against impermissible government intrusions based firmly on the Fourth Amendment’s Warrant Clause186 to a balancing test which weighs an individual’s right to privacy against the government interest in effective law enforcement. This balancing test departs from the language of the Warrant Clause and relies instead on the Reasonableness Clause, based on the special needs of government.

Drolif Advantage Weaponized drones are coming and have dangerous applicationsGreenwald 11(Glenn, Journalist and lawyer, December 6 2011, “NPR’s Domestic Drone Commercial”, http://www.salon.com/2011/12/06/nprs_domestic_drone_commercial/)Excitement over America’s use of drones in multiple Muslim countries is, predictably, causing those weapons to be imported onto U.S. soil. Federal law enforcement agencies and local police forces are buying more and more of them and putting them to increasingly diverse domestic uses, as well as patrolling the border, and even private corporations are now considering how to use them. One U.S. drone manufacturer advertises its product as ideal for “urban monitoring.” Orlando’s police department originally requested two drones to use for security at next year’s GOP convention, only to change their minds for budgetary reasons. One new type of drone already in use by the U.S. military in Afghanistan — the Gorgon Stare, named after the “mythical Greek creature whose unblinking eyes turned to stone those who beheld them” — is “able to scan an area the size of a small town” and “the most sophisticated robotics use artificial intelligence that [can] seek out and record certain kinds of suspicious activity”; boasted one U.S. General: “Gorgon Stare will be looking at a whole city, so there will be no way for the adversary to know what we’re looking at, and we can see everything.” As of the 2010 year-end report from the Federal Aviation Administration (FAA), there were already “more than 270 active authorizations for the use of dozens of kinds of drones” (35% held by the Pentagon, 5% by Homeland Security and others by the FBI). Employing them for domestic police actions is following the model quickly being implemented in surveillance-happy Britain, where drones are used for “the ’routine’ monitoring of antisocial motorists, protesters, agricultural thieves and fly-tippers, in a

significant expansion of covert state surveillance.” Even leaving aside the issue of weaponization (police officials now openly talk about equipping drones with “nonlethal weapons such as Tasers or a bean-bag gun”), the use of drones for domestic surveillance raises all sorts of extremely serious privacy concerns and other issues of potential abuse . Their ability to hover in the air undetected for long periods of time along with their comparatively cheap cost enables a type of broad, sustained societal surveillance that is now impractical, while equipping them with infra-red or heat-seeking detectors and high-powered cameras can provide extremely invasive imagery. The holes eaten into the Fourth Amendment’s search and seizure protections by the Drug War and the War on Terror means there are few Constitutional limits on how this technology can be used, and there are no real statutory

or regulatory restrictions limiting their use. In sum, the potential for abuse is vast, the escalation in surveillance they ensure is substantial, and the effect they have on the culture of personal privacy — having the state employ hovering, high-tech, stealth video cameras that invade homes and other private spaces — is simply creepy. But listeners of NPR would know about virtually none of that. On its All Things Considered program yesterday, NPR broadcast a five-minute report (audio below) from Brian Naylor that purported to be a news story on the domestic use of drones but was, in fact, much more akin to a commercial for the drone industry. Naylor began by describing a video on the website of a drone manufacturer, AeroVironment, which names its drone “the Qube”; the video, gushed Naylor, shows police officers chasing a criminal who hides, only for the police to pull a drone out of their trunk, launch it airborne, receive images of where the criminal is hiding on their iPad, and then find and arrest the suspect, who was armed and dangerous. NPR listeners then heard from that corporation’s Vice President touting how much the Qube will help “public safety professionals like law enforcement, search and rescue, and first responders.” Naylor then told NPR listeners that drones “have been a success with the military” — though he didn’t mention things like this, this or this — and then moved on to talk to an official in a Sheriff’s office in Colorado who uses the Dragonfly X6; in Naylor’s words, that police official explained how the drone product has “been especially useful in search operations.” The Sheriff official then hailed the drone’s low cost, light weight, and fantastic safety record. Next up in NPR’s report was — seriously — an official with the Association for Unmanned Vehicle Systems International, which Naylor called “an industry trade group.” That’s the organization that represents the drone manufacturing industry, and NPR decided that this, too, was an important source for its story examining the domestic use of drones. That official touted all the fantastic private-sector uses for drones, including “Utility companies – so oil and gas – using a UAS to do surveillance over a pipeline; electrical companies that want to do surveillance over some of their electrical wires; the agriculture market. So, you can use UAS for crop testing. You could use UAS for tracking livestock. ” With about 20 seconds left in the report, it came time to tack on a brief, cursory note about privacy and abuse issues. Said Naylor: “All that flying around of unmanned aircraft has some people a little wary.” A “privacy advocate” was put on the air for about ten seconds to note that “drones can easily be equipped with facial recognition cameras, infrared cameras, or open WiFi sniffers” and could also be used by “paparazzi, your homeowners’ association, your neighbor.” Naylor then noted that the FAA is working now on safety regulations, and with that, the report ended. So NPR listeners heard for 4 1/2 minutes about the wonderful, exciting uses of drones from an executive of a drone corporation, an official with the

drone industry, and a sheriff’s spokesman using drones, and then for about 10 seconds at the end from someone who is “a little wary.” If the drone industry had purchased commercial time on NPR, how would this report have been any different? (An industry commercial might have given more prominent play to the privacy advocate just to make it seem less one-sided).

Weaponized drones are inevitable and coming fastGreenwald 13(Glenn, Journalist and lawyer, March 29 2013, “Domestic Drones ad Their Unique Dangers”, http://www.theguardian.com/commentisfree/2013/mar/29/domestic-drones-unique-dangers)The use of drones by domestic US law enforcement agencies is growing rapidly, both in terms of numbers and types of usage. As a result, civil liberties and privacy groups led by the ACLU - while accepting that domestic drones are inevitable - have been devoting increasing efforts topublicizing their unique dangers and agitating for statutory limits. These efforts are being impeded by those who mock the idea that domestic drones pose unique dangers (often the same people who mock concern over their usage on foreign soil). This dismissive posture is grounded not only in soft authoritarianism (a religious-type faith in the Goodness of US political leaders and state power generally) but also ignorance over current drone capabilities, the ways drones are now being developed and marketed for domestic use, and the activities of the increasingly powerful domestic drone lobby. So it's quite worthwhile to lay out the key under-discussed facts shaping this issue. I'm going to focus here most on domestic surveillance drones, but I want to say a few

words about weaponized drones. The belief that weaponized drones won't be used on US soil is patently irrational. Of course they will be. It's not just likely but inevitable. Police departments are already speaking openly about how their drones "could be equipped to carry nonlethal weapons such as Tasers or a bean-bag gun." The drone industry has already developed and is now aggressively marketing precisely such weaponized drones for domestic law enforcement use. It likely won't be in the form that has received the most media attention: the type of large Predator or Reaper drones that shoot Hellfire missiles which destroy homes and cars in Pakistan, Yemen, Somalia, Afghanistan and multiple other countries aimed at Muslims (although US law enforcement agencies already possess Predator drones and have used them over US soil for surveillance). Instead, as I

detailed in a 2012 examination of the drone industry's own promotional materials and reports to their shareholders, domestic weaponized drones will be much smaller and cheaper, as well as more agile - but just as lethal. The nation's leading manufacturer of small "unmanned aircraft systems" (UAS), used both for surveillance and attack purposes, is AeroVironment, Inc. (AV). Its2011 Annual Report filed with the SEC repeatedly emphasizes that its business strategy depends upon expanding its market from foreign wars to domestic usage including law enforcement: [PHOTO] AV's annual report added: "Initial likely non-military users of small UAS include public safety organizations such as law enforcement agencies. . . ." These domestic marketing efforts are intensifying with the perception that US spending on foreign wars will decrease. As a February, 2013 CBS News report noted, focusing on AV's

surveillance drones: "Now, drones are headed off the battlefield. They're already coming your way. "AeroVironment, the California company that sells the military something like 85 percent of its fleet, is marketing them now to public safety agencies." Like many drone manufacturers, AV is now focused on drone products - such as the "Qube" - that are so small that they can be "transported in the trunk of a police vehicle or carried in a backpack" and assembled and deployed within a matter of minutes. One news report AV touts is headlined "Drone technology could be coming to a Police Department near you", which focuses on the Qube. But another article prominently touted on AV's website describes the tiny UAS product dubbed the "Switchblade", which, says the article, is "the leading edge of what is likely to be the broader, even wholesale, weaponization of unmanned systems." The article creepily hails the Switchblade drone as "the ultimate assassin bug". That's because, as I wrote back in 2011, "it is controlled by the operator at the scene, and it worms its way around buildings and into small areas, sending its surveillance imagery to an i-Pad held by the operator, who can then direct the Switchblade to lunge toward and kill the target (hence the name) by exploding in his face." AV's website right now proudly touts a February, 2013 Defense News article describing how much the US Army loves the "Switchblade" and how it is preparing to purchase more. Time Magazine heralded this tiny drone weapon as "one of the best inventions of 2012", gushing: "the Switchblade drone can be carried into battle in a backpack. It's a kamikaze: the person controlling it uses a real-time video feed

from the drone to crash it into a precise target - say, a sniper. Its tiny warhead detonates on impact." What possible reason could someone identify as to why these small, portable weaponized UAS products will not imminently be used by federal, state and local law enforcement agencies in the US? They're designed to protect their users in dangerous situations and to enable a target to be more easily killed. Police agencies and the increasingly powerful drone industry will tout their utility in capturing and killing dangerous criminals and their ability to keep officers safe, and media reports will do the same . The handful of genuinely positive uses from drones will be endlessly touted to distract attention away from the dangers they pose. One has to be incredibly naïve to think that these "assassin bugs" and other lethal drone products will not be widely used on US soil by an already para-militarized domestic police force. As Radley Balko's forthcoming book "Rise of the Warrior Cop" details, the primary trend in US law enforcement is what its title describes as "The Militarization of America's Police Forces". The history of domestic law

enforcement particularly after 9/11 has been the importation of military techniques and weapons into domestic policing. It would be shocking if these weapons were not imminently used by domestic law enforcement agencies.

Domestic Drone surveillance leads to a mass, weaponized, violent surveillance state, justifying human-rights abuses throughout the nationGreenwald 11 (Glenn Greenwald, Glenn Greenwald is a journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and law. His most recent book, No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world for the Guardian, December 12, 2011. “The growing meanace of domestic drones” http://www.salon.com/2011/12/12/the_growing_menace_of_domestic_drones/)

There is always a large segment of the population that reflexively supports the use of greater government and police power — it’s usually the same segment that has little objection to Endless War — and it’s grounded in a mix of standard authoritarianism (I side with authority over those they accused of being Bad and want authorities increasingly empowered to stop the Bad people) along with naiveté (I don’t really worry that new weapons and powers will be abused by those in power, especially when — like now — those in power are Good). This mindset manifests in the domestic drone context weapons such as Tasers or a bean-bag gun.” Anyone who doubts that this is going to happen should just consider what the drone manufacturing industry itself is saying. They continuously emphasize to investors and others that a major source of business growth for their drone products will be domestic, non-military use . Consider the case of AeroVironment, Inc. (AV), the nation’s leading manufacturer of small drones, used both for surveillance and attack purposes (the leading manufacturer of the larger drones, such as the Predator, is General Atomics

Aeronautical Systems, Inc., owned by the privately-held General Atomics). In their 2011 Annual Report, AV repeatedly touts domestic uses as the source for future growth:AV specializes in the manufacture of drone products so small that they can be transported in the trunk of a car and assembled and deployed within a matter of minutes. In other words, rather

than being remote-operated from a military base, they can be used by a single soldier — or police officer — chasing a suspect, and can be deployed to find suspects around corners, behind buildings, in urban

environments: and not just find them, but kill them. The product which AV appears to believe holds the greatest promise is one they have christened “The Switchblade,” the

research and development of which has been funded in part by the U.S. Government. As I noted last week, AV prominently touts an article hailing the Switchblade as “an ingenious, miniature unmanned aerial vehicle (UAV) that is also a weapon” and “the leading edge of what is likely to be the broader, even wholesale, weaponization of unmanned systems.” Because of how small, light and easily deployable it is, the article dubs this new product “the ultimate assassin bug.” Basically, controlled by the operator at the scene, it worms its way around buildings and into small areas, sending its surveillance imagery to an i-Pad held by the operator, who can then direct the Switchblade to lunge toward and kill the target (hence the

name) by exploding in his face. Here’s how AV describes its new product:For those dismissing concerns about drones by claiming (falsely) that they are the equivalent of police helicopters, won’t those same people dismiss concerns over weaponized drones by arguing: there’s no difference between allowing the police to Taser you or shoot you themselves and allowing them to do that by drone? This is always how creeping police state powers are entrenched : one step at a time. For those who are perfectly content with having stealth, hovering drones over U.S. soil for sustained surveillance purposes — based on the reasoning that the

police can already engage in surveillance so why not let them do it more efficiently? — what possible objections will there be to having the police use weaponized drones? After all, the police can already Taser, pepper spray and

shoot people: why not let them do it with drones? AV itself certainly expects precisely that lack of resistance:The fact is that drones vest vast new powers that police helicopters and existing weapons do not vest: and that’s true not just for weaponization but for surveillance. Drones enable a Surveillance State unlike anything we’ve seen. Because small drones are so much cheaper than police

helicopters, many more of them can be deployed at once, ensuring far greater surveillance over a much larger area. Their small size and stealth capability means they can hover without any detection, and they can remain in the air for far longer

than police helicopters. Their hovering capability also means they can surveil a single spot for much longer than military satellites, which move with the earth’s rotation (see AV’s Report at p. 11 — the section entitled “Stratospheric

Persistent UAS” — for all the reasons drones can provide uniquely sustained surveillance in ways that satellites and police helicopters cannot).As I noted last week, one new type of drone already in use by the U.S. military in Afghanistan — the Gorgon Stare, named after the “mythical Greek creature

whose unblinking eyes turned to stone those who beheld them” — is “able to scan an area the size of a small town“ and “the most sophisticated robotics use artificial intelligence that [can] seek out and record certain kinds of suspicious activity ”; boasted one U.S. General: “Gorgon

Stare will be looking at a whole city, so there will be no way for the adversary to know what we’re looking at, and we can see everything.” Only ignorance and irrationality can lead someone to assert that surveillance drones do nothing more than what police helicopters already enable. Beyond the natural extension of the authoritarian mindset — if we use drones to find and/or kill Bad Guys over there, why not let our leaders use them over here? (and Wired today published

photographs of the civilian impact of President Obama’s drone campaign “over there”) — a separate reason the domestic importation of drones is highly likely is that this

industry is spending large amounts of money to ensure it. When a scandal erupted several years ago over corporate-paid trips for members of Congress and

their staffs — the most common destinations being such strategically vital locales such as Paris, Hawaii, and Italy — it was General Atomics, the maker of the Predator drone, that was the largest underwriter of those trips. This is an industry that has long consolidated its control over Congress using the standard mix of campaign contributions, legalized bribery, and bipartisan lobbyist armies.General Atomics employs a large team of lobbyist firms filled with former government officials, Congressional staffers and even members of Congress. Those lobbyists include former GOP Sen. Al D’Amato and his son Christopher (ex-Senior Counsel at the SEC); Dave Kilian, who boasts of “29 years of service to the Federal Government in both the executive and legislative branches” and “21 years as a professional staffer for various leaders of the House Appropriations Committee”; Letita White, who for 21 years “worked for [GOP Democratic] Congressman Jerry Lewis, the current Ranking Minority Member of the House Appropriations Committee”; Jessica Eggimann, former House staffer to GOP Rep. Joe Wilson on the Veterans’ Affairs Committee; and Clayton Heil, the former “deputy staff director and general counsel to the Senate Appropriations Committee.” That’s just a fraction of the influence-peddlers laboring in the halls of Washington for GA. Unsurprisingly, GA’s annual lobbying budget is in excess of $2 million. AeroVironment’s lobbying expenditures are now close to $1 million each year. Meanwhile, a top GA in-house lobbyist, Gary Hopper, personally doles out tens of thousands of dollars in campaign contributions to key House members of both parties who work on defense issues. They are focused on lobbying for exactly the bills one would expect: defense appropriations, Homeland Security budgets and the like.

They believe, as they make very clear, that their future growth depends upon expanding the use of drones beyond military uses into domestic law enforcement settings. With these armies of influence-peddlers lined up to ensure that happens, combined with the security-fixated mentality of America’s political and media classes and the authoritarian factions of its citizenry, what is going to stop the full-scale importation of drone

technology — for surveillance and weaponization — onto American soil? Why would anyone think that’s not going to happen? * * * * * Not just the potential for abuse — but the

likelihood of it, really the inevitability — is self-evident for so many reasons . Today, Paul Krugman decreed that the U.S. and Europe are suffering not a recession but a

“depression,” and highlighted the social unrest and anti-democratic forces growing in Europe. Economic- and austerity-fuelled riots have already struck London and Athens. Police in England have formally labeled the Occupy

movement a “Terrorist threat” alongside Al Qaeda and FARC and, of course, excessive police force has been repeatedly used against Occupy protesters on U.S. soil. And U.S.

Terrorism officials now routinely emphasize the supposedly domestic nature of the Terrorist threat, with greater powers constantly being seized in its name for domestic uses . It’s beyond obvious that policy planners and law enforcement

officials expect serious social unrest. Why wouldn’t they: when has sustained, severe economic suffering and anxiety of the sort we are now seeing — along with pervasive, deep anger at

the political class and its institutions — not produced that type of unrest? Drones are the ultimate tool for invasive, sustained surveillance and control, and one would have to be historically ignorant and pathologically naive not to understand its capacity for abuse. Take the case just reported on by the LA Times. At first, I was somewhat baffled as to why this case — involving a minor dispute over 6 wandering cows, followed by some not unusual hostility from farm owners toward law enforcement — would prompt the first use of a Predator B drone to apprehend domestic suspects. But looking a bit further into the matter made it clear. The

suspects in question are basically political dissidents: they are adherents to the “sovereign citizen” movement which basically engages in mischievous civil disobedience — the filing of fraudulent lien

documents and the like — to protest what it believes to be illegitimate government authority. Although a few members of that movement have engaged in violence (as is true for most political movements), these particular

suspects are not accused of any wrongdoing with regard to any of that, but their participation in an anti-government movement is obviously what led federal authorities to lend their

Predator drone to apprehend them.In the name of “homegrown Terrorism,” so many of the most recent War on Terror expansions have entailed application for domestic uses: from the Obama administration’s assault on Miranda rights to its claimed power to assassinate U.S. citizens

to the latest detention bill about to pass Congress. The Surveillance State and the police powers ushered in by the War on Terror have been widely applied to domestic political dissent. The U.S. Government’s fixation on identifying and punishing dissidents is illustrated by the administration’s

creepy new “hear-something, see-something” campaign against “domestic radicalization”: encouraging teachers and children to spot and then report those “making statements that indicate a rejection of American society.” It

takes little imagination to see the dangers of this militarization of domestic police powers; in fact, it takes extreme denseness and authoritarian trust to dismiss it as “paranoia” or “hysteria.” Here’s how Matt Taibbi put it when trumpeting the dangers of potential domestic application of the new detention bill: Here’s where I think we’re in very dangerous

territory. We have two very different but similarly large protest movements going on right now in the Tea Party and the Occupy Movement. What if one of them is linked to a violent act? What if a bomb goes off in a police station

in Oakland, or an IRS office in Texas? What if the FBI then linked those acts to Occupy or the Tea Party? . . . . This effort to eat away at the rights of the accused was originally gradual, but to me it looks like that process is accelerating. It began in the Bush years with a nebulous description of terrorist sedition that may or may not have included links to Sunni extremist groups in places like Afghanistan and Pakistan. But words like

“associated” and “substantial” and “betray” have crept into the discussion, and now it feels like the definition of a terrorist is anyone who crosses some sort of steadily-advancing invisible line in their opposition to the current

government. . . . This confusion about the definition of terrorism comes at a time when the economy is terrible, the domestic government is more unpopular than ever, and

there is quite a lot of radical and even revolutionary political agitation going on right here at home. There are people out there – I’ve met

some of them, in both the Occupy and Tea Party movements – who think that the entire American political system needs to be overthrown, or at least reconfigured, in order for progress to be made. . . . At what point do those luminaries start equating al-Qaeda supporters with, say, radical anti-capitalists in the Occupy movement? What exactly is the difference between such groups in the minds (excuse me, in what passes for the minds) of the people who run this country? That difference seems to be getting smaller and smaller all the time, and such niceties as American citizenship and the legal tradition of due process seem to be less and less meaningful to the people who run things in America. What does seem real to them is this “battlefield earth” vision of the world, in which they are behind one set of lines and an increasingly enormous group

of other people is on the other side. No matter one’s views, the escalating addition of drones — weaponized or even just surveillance — to

the vast arsenal of domestic weapons that already exist is a serious, consequential development. The fact that it has happened with almost no debate and no real legal authorization is itself highly significant. One thing is for certain: this is a development that is going to continue and increase rapidly . It needs far more attention than it has thus far received.

Current FAA regulations fail to stop weaponizationGallagher 13(Ryan, journalist who reports on surveillance, security, and civil liberties, July 3 2013, “U.S. Border Agency Has Considered Weaponizing Domestic Drones to "Immobilize" People”, http://www.slate.com/blogs/future_tense/2013/07/03/documents_show_customs_and_border_protection_considered_weaponized_domestic.html)

Drones in the United States are currently only authorized to be used for surveillance purposes. But that hasn’t stopped the Department of Homeland Security from considering weaponizing its unmanned aircraft so they can “immobilize” targets in border areas. Newly released documents, dated 2010, show that the DHS’s Customs and Border Protection arm has weighed the possibility of adding “non-lethal weapons” to its Predator unmanned aircraft, which are currently used predominantly to monitor border zones in Arizona and Texas. The documents, obtained by the Electronic Frontier Foundation through a Freedom of Information Act request, show the CPB suggesting in a “law enforcement sensitive”

report to Congress that its drones could be upgraded to include the weapons to shoot at “targets of interest.” The documents do not detail specific weapons, but “non-lethal” rounds deployed on drones could feasibly include rubber bullets, tear gas, or a Taser-like shock. That CBP has considered weaponizing its drones will add to concerns about potential mission creep with unmanned technology being used domestically. Rights groups have previously raised concerns about the possibility of drones in the United States being equipped with weapons, which may have prompted President Obama during a speech in May to state that he believed no president should “deploy armed

drones over U.S. soil." The FAA, which is working to integrate drones into the national airspace system by September 2015, has said that it has rules in place that “prohibit weapons from being installed on a civil aircraft” and that it does not “have any plans on changing them for unmanned aircraft.” But as drone technology is increasingly adopted by law enforcement agencies, the agency may come under pressure to rethink those regulations.

Prior aciton is key Burgess 15(Rep. Michael, congressman, 26th district Texas, May 1 2015, “It’s Time to Ban Armed Drones on American Soil”, http://dailycaller.com/2015/05/01/its-time-to-ban-armed-drones-on-american-soil/)When most people heard about an Unmanned Aircraft System (UAS), or “drone,” for the first time, it was almost solely in the context of military strategy. It doesn’t seem very long ago that this technology seemed exclusively military-grade and too hyper-advanced to concern the average

American. But, we live in fast times. Federal Aviation Administration (FAA) rules have been relaxed in recent years. In fact, the program’s last re-authorization even acknowledged the field was rapidly advancing unpredictably, which would necessitate

new oversight. And sure enough, in a few short years drones have rapidly integrated into our everyday lives. Delivery companies like Amazon want them, energy companies want them to monitor multi-acre pipelines and wind farms, and scaled down versions are even sought after for recreation. These adaptations are similar to the after-effects of any groundbreaking technology, and aren’t

threatening in and of themselves. However, local police agencies across the country are increasingly requesting FAA approval to deploy drones. Most could have reasonable intentions, but some departments are seeking to arm drones with tear gas, rubber bullets, and other riot control-like projectiles. The first local police to show

interest were in my home state of Texas and, since, interest has become more widespread in nationwide local departments. What’s worse is that federal law enforcement seems to be complicit. The Drug Enforcement Administration (DEA) is entertaining the idea of deploying drones with drug sensing capabilities. Meanwhile, the Central Intelligence Agency (CIA) directly contradicts their own mission statement by carrying out drone strikes abroad. This path is unacceptable. Before drones become a widespread staple of local law enforcement, we owe it to ourselves to have a national discussion. We need the chance to answer the serious questions that drones pose before we go down a path we can’t reverse. These questions hit at the very core of our nation’s most cherished principles of personal privacy and freedom from oppression. Our founders laid the foundation for a society where the use of military tactics by agents of our justice system really has no place. In that context, I believe that free citizens are innocent unless proven guilty, and that they aren’t to be treated as suspects, or terrorists, while going about their everyday lives. Don’t confuse the matter. Drones are a legitimate tactical benefit to those in contested

regions – like our soldiers fighting overseas or the agents working to secure our borders. But, arming a remote-controlled surveillance drone for day-to-day domestic law enforcement is blatantly an over-the-top use of force. There is no reason that any law abiding American should experience that kind of oppression , and I intend to make it so that they won’t have to. Just last week, I introduced the “No Armed Drones Act (NADA)” to bar the use of armed drones – lethal or

non-lethal – against any person or property in the entirety of our national airspace. Even before we can get to having thoughtful discussion on many of the issues surrounding drones, it is of the utmost importance that we

start those talks on an even surface that doesn’t include armed, unmanned, flying police aircraft . This is a constitutional issue, not a partisan one. And I swore to defend our Constitution. So, rest-assured, I will continue fighting to ensure that, before the FAA approves a single drone for local policing or our federal agencies create a surveillance state full of citizens who constantly look over their shoulders, we as a nation have the opportunity to choose liberty in this dynamic age of innovation.

The FAA is currently stripping away drone regulations—no guarantee that any bans on drone weaponization will last Dillow 15(Clay, technology, aerospace, and defense reporter, March 24 2015, “FAA issues blanket approval for commercial drone use below 200 feet”, http://fortune.com/2015/03/24/faa-commercial-drone-approval/)The Federal Aviation Administration on Tuesday released a new interim policy governing the use of certain small drones for commercial purposes, issuing a blanket authorization for unmanned aircraft flights below 200 feet.

But the new rules won’t benefit everyone equally. The new policy only applies to the roughly 45 companies that have already obtained permission to fly through the FAA’s slow and stringent “Section 333” process. Under existing FAA rules, there are two ways to gain clearance for unmanned aircraft system (UAS) operations. One can apply for a Certificate of Waiver or Authorization (COA), which typically grant government agencies or research institutions permission to use drones under fairly

restrictive circumstances, usually for research. Businesses can also apply for permission to use drones through what’s known as Section 333 of the FAA Modernization and Reform Act of 2012, under which the FAA can grant companies approval to fly drones commercially under certain defined parameters. The FAA has approved only 53 Section 333 applications for roughly 45 companies thus far. Some 600 applications are still pending, stuck in a slow-moving approval pipeline. The FAA’s new policy grants any company or entity that has already cleared the Section 333 approval process a blanket COA to fly below 200 feet. In other words, those companies that are already approved to fly under Section 333 now have blanket approval to fly below 200 feet. If all

that sounds a bit confusing, here’s what it really means: If you weren’t authorized to fly before, you still can’t. But for those with Section 333 exemptions, the FAA just slashed through a whole lot of red tape. Section 333 exemptions come with a lot of bureaucratic baggage. For instance, users that simply want to test a new flight software patch or use a drone to inspect something no

higher than a power line have to file flight plans with the FAA. The blanket COA essentially allows those same companies to operate much more flexibly and without so much government oversight provided they’re willing to keep their aircraft below 200 feet.

Drone regulation needs to happen now-prolif coming soonWADHWA 2014

(Vivek Wadhwa, Director of Research at the Center for Entrepreneurship and Research Commercialization at the Pratt School of Engineering, Duke University , 12-10-2014, "Banning Drones Won't Solve the Problem," Huffington Post, http://www.huffingtonpost.com/vivek-wadhwa/banning-drones-wont-solve-the-problem_b_6301134.html)

The Federal Aviation Administration recently released a report detailing more than 190 safety incidents involving drones and commercial aircraft. In response, Senator Dianne Feinstein (D-Calif.) has vowed to push legislation that would crack down on the commercial use of drones, also called Unmanned Aircraft Systems (UAS). India's Directorate General for Civil Aviation has already banned all use of drones in the country -- even for civilian purposes. There are valid concerns that the proliferation of drones will endanger commercial flights and cause serious accidents. The U.S. military is rightfully worried that drones will be weaponized as killing machines and become autonomous flying IEDs (improvised explosive devices) that target a specific individual by means of facial recognition.

Banning commercial drone use will not solve these problems; it will just give us a false sense of comfort

and kick the can further down the road. About two years ago, I wrote a Washington Post column in which I argued that we need to prepare ourselves for the "drone age." It isn't just the United States that is developing drone capabilities; governments and DIYers all over the world are doing the same, particularly the Chinese. This isn't all bad; there are many good uses for drone technologies. To start with, there isn't yet a clear consensus on what a drone is. Is it something that flies and is remote controlled? If that is the case, should the FAA also ban remote-controlled

airplanes and helicopters that hobbyists have flown happily and relatively safely for many years? The drone encounter that Senator Feinstein cited in a Senate Commerce Committee hearing as a reason to regulate commercial drone flights was reportedly just a pink toy helicopter. Then there is the practicability of enforcement. If the government should institute restrictions and penalties, who will enforce them? Will the police buy high-performance drones to shoot down illicit drones? Can we scramble the Air Force to blow a flock of $300 quadcopters out of the sky?

Should we equip legions of young children with air rifles? Proposing laws without realistic hope of enforcement does nothing to solve the problems at hand. Let's first acknowledge that drones will be common in our skies and that they will play an integral role in our economy and society . We know that drones are saving money and improving safety on many types of remote

inspection such as that of distant pipelines and tall broadcast towers. Documentary filmmakers use drones to get aerial shots that are not affordable with a regular plane or helicopter. As well, start-ups like Matternet are pioneering the use of drones to deliver critical medical supplies to remote parts of the developing world. Drones could be used as long-haul cargo-delivery vehicles, allowing for more efficient point-to-point delivery of goods and materials. Then of course, companies such as Google and Amazon are developing drone delivery services that provide within-

the-hour delivery of ordered goods--without putting any more traffic onto the streets or carbon into the skies. So if we don't ban the drones, what can we do to prepare for them and weave their capabilities into a broader picture of economic development ? First, there needs to be a core technology framework for collision avoidance . This is no small problem. Even the best computer-vision algorithms struggle to navigate complex cityscapes. The vehicles in NASA's DARPA

challenge weighed thousands of pounds and carried serious computational and sensor firepower. Yet they could barely navigate barren wastelands without flipping themselves over or running into a wall. So how will a drone the size of a shoebox carry enough intelligence to avoid hitting a building, a person, a car, a power line or, worst case, a commercial aircraft? It's a wonderful engineering challenge and worth the focus of some of our best minds. Assuming we have collision-avoidance systems in place, how can we build a system of distributed air-traffic control for drones? It would obviously need to be computer-driven and automatic, and to include safety measures and emergency kill switches or other mechanisms to bring down a drone that is malfunctioning or poses a danger. We would need to plan for specific air corridors in city areas that are

dedicated to drones and confine the drones to those places. Again, this is a huge engineering challenge, but not one that is insurmountable. We also need to build private and commercial air-defense systems, just as the military is developing, to shield our schools, homes, and businesses from drone surveillance or attack. I wonder whether force fields such as we saw on Star Trek may become a practical reality. Beyond the technical issues, we need to debate what is socially acceptable and to create legal frameworks. Should the cameras of delivery drones be recording and saving all video footage as they enter into the airspace of a customer's home? For that matter, should drones be

allowed to fly over private property at all -- or should they be limited to public roads between droneports? Should we have the right to shoot down unauthorized drones on our property? If the Second Amendment grants the right of gun ownership to individuals for self-defense, then does it allow them to fly their own defensive drones? These are issues we need to tackle -- and soon. The drones are coming, whether we are ready or not.

US regulation spillover only way to stop backlash in Asia and MEATLANTIC COUNCIL OF CANADA 2014

(Atlantic Council of Canada, 6-18-2014, "The Economy of Drones and their Proliferation," http://natocouncil.ca/the-economy-of-drones-and-their-proliferation/)

In their article, William Wan and Peter Finn, state that “More than 50 countries have purchased surveillance drones, and many have started in-country development programs for armed versions.” In recent years, China has shown great interest in expanding its drone technology and following the USA’s example of shifting military technology towards robotics orientated weapons. In the November 2011 Zhuhai air show, the Chinese unveiled their new WJ-600 drone along with a dozen other models. China is perhaps the fastest developer of UAVs with models which have a striking resemblance to US aircraft such as General Atomic’s Predator and Northrop Grumman’s Global Hawk. The Chinese have also been quick to notice a window of profit for selling drone technologies as previously the US has exported this technology to close allies only. Zhang Qiaoliang, a representative of the Chengdu Aircraft Design and Research Institute said “the United States doesn’t export many attack drones, so we’re taking advantage of that hole in the market.” China’s role in exporting drones is increasing drastically as it does not have many trade restrictions, and the country has begun showing more drones in international air shows with intent to sell. Among other models, they now boast the ‘pterodactyl’, a model comparable to the US Predator, with an anticipated market in Pakistan, the Middle East, and Africa. The increasing Chinese role in exporting drones and drone technology has also pressured the US to broaden its list of drone export approved countries in order to counter Chinese exports and gain an upper hand in the market. The US also has a military strategic interest in maintaining a monopoly in the drone market, because it gives the US and its allies a military advantage over other nations. General Atomics has received approval from the Pentagon to sell unarmed surveillance drones to the Middle East and Latin America. The company is now pending approval to sell to Saudi Arabia, the United Arab Emirates, and Egypt. The US has also simultaneously been controlling where its allies sell their drones. In 2008 Israel sold and anti-radar attack drone to China, for which it had been penalized by a temporary exclusion from the F-35 Joint Strike Fighter programme. All nations are, however, equally privileged to develop and use drones and the US should not have the right to maintain a monopoly over the drone market by coercive means. Although the drone market is economically and strategically beneficial to many nations, the proliferation of this technology does have some adverse effects. For example, China’s aggressive drone

exports have created unrest in its neighbouring countries, which could lead to regional instability if this new Chinese military advantage is not accounted for. In response, Japan has stated it will send military officials to the US in order to study UAV technologies and recently the US has sent two global hawk surveillance drones to Japan in a statement that it is committed to Asian security. The proliferation of the UAV is highly alarming as it signals a greater movement towards the proliferation of robotic weapons, which raises questions about the rules of engagement. Noel Sharkey stated that “one of the great inhibitors of war is the body bag count, but that is undermined by the idea of riskless war”, he further explained that widespread use of attack drones could “reduce the threshold for going to war”. The current use of drones by the US is also very controversial as many targeted killing in Pakistan are de facto a violation of Pakistan’s sovereignty. Targeted killing is also disputed by many academics of international law, and the drone movement in itself lacks clear international legal governing structures, which could lead to the misuse of drones by more nations outside the US. To conclude, the growing drone market – and possibly an emerging military robotics market – have high economic and strategic values for many nations; however, uncontrolled proliferation could prove dangerous. Greater supply and market access to these weapons could lead unwanted parties such as terrorist groups or irrational states like North Korea to acquire these weapons.

Domestic drone policy gets modeled – regulations like the plan are key Barry 13

(Tom, policy analyst at Center for International Policy, April 23, 2013, “DRONES OVER THE HOMELAND HOW POLITICS, MONEY AND LACK OF OVERSIGHT HAVE SPARKED DRONE PROLIFERATION, AND WHAT WE CAN DO” https://www.ciponline.org/research/html/drones-over-the-homeland)

Drones are proliferating at home and abroad. A new high-tech realm is emerging, where remotely controlled and autonomous unmanned systems do our bidding. Unmanned Aerial Vehicles (UAVs) and Unmanned Aerial Systems (UAS) – commonly known as drones – are already working for us in many ways. This new CIP International Policy Report reveals how

the military-industrial complex and the emergence of the homeland security apparatus have put border drones at the forefront of the intensifying public debate about the proper role of drones domestically. Drones Over the Homeland focuses on the deployment of drones by the Department of Homeland Security (DHS), which is developing a drone fleet that it projects will be capable of quickly responding to homeland security threats, national security threats and national emergencies across the entire nation. In addition, DHS says that its drone fleet is available to assist local law-enforcement agencies. Due to a surge in U.S. military contracting since 2001, the United States is the world leader in drone production and deployment. Other nations, especially China, are

also rapidly gaining a larger market share of the international drone market. The United States, however, will remain the dominant driver in drone manufacturing and deployment for at least another decade. The central U.S. role in drone proliferation is the direct result of the Pentagon’s rapidly increasing expenditures for UAVs. Also fueling drone proliferation is UAV procurement by the Department of Homeland Security, by other federal agencies such as NASA, and by local police, as well as by individuals and corporations. Drones are also proliferating among state-level Air National Guard units. Despite its lead role in the proliferation of drones, the U.S. government has failed to take the lead in establishing appropriate regulatory frameworks and oversight processes. Without this necessary regulatory infrastructure – at both the

national and international levels – drone proliferation threatens to undermine constitutional guarantees, civil liberties and international law. This policy report begins with a brief overview of the development and deployment of UAVs, including a summary of the DHS drone program. The second section details and critically examines the role of Congress and industry in promoting drone proliferation. In the third part, we explore the expanding scope of the DHS drone program, extending to public safety and national security. The report’s fourth section focuses on the stated objectives of the homeland security drone program. It debunks the dubious assertions and myths that DHS wields in presentations to the public and Congress to justify this poorly conceived, grossly ineffective and entirely nonstrategic border program. The report’s final section summarizes our conclusions, and then sets forward our recommendations. I. UAV OVERVIEW AND ORIGIN OF HOMELAND SECURITY DRONES UAVs are ideal instruments for what the military calls ISR (intelligence, surveillance and reconnaissance) missions. Yet, with no need for an onboard crew and with the capacity to hover unseen at high altitudes for long periods, drones also have many nonmilitary uses. Whether deployed in the air, on the ground or in the water, unmanned drones are ideally suited for a broad range of scientific, business, public-safety and even humanitarian tasks. That is due to what are known as the “three Ds” capabilities – Dull (they can work long hours, conducting repetitive tasks), Dirty (drones are impervious to toxicity) and Dangerous (no lives lost if a drone is

destroyed). Indicative of the many possibilities for UAV use, some human rights advocates are now suggesting drones can be used to defend human rights, noting their ISR capabilities could be used to monitor human rights violations by repressive regimes and non-state actors in such countries as Syria.1 Manufacturers, led by the largest military contractors, are rapidly producing drones for a boom market, whose customers include governments (with the U.S. commanding dominant market share), law enforcement agencies, corporations, individual consumers and rogue forces. Drones are proliferating so rapidly that a consensus about their formal name has not yet formed. The most common designation is Unmanned Aerial Vehicles (UAVs), although Unmanned Aerial Systems (UAS) is also frequently used. Other less common terms include Unmanned Systems (US) and Remotely Piloted Aircraft (RPA). The more inclusive “Unmanned Systems” term covers ground and marine drones , while highlighting the elaborate control and communications systems used to launch, operate and recover drones. However, because most drones require staffed command-and-control centers, Remotely Piloted Aircraft may be the best descriptive term. DRONES TAKE OFF Although the U.S. military and intelligence sectors had been promoting drone development since the early 1960s,2 it was the Israeli Air Force in the late 1970s that led the way in drone technology and manufacture. However, after the Persian Gulf War in 1991, the U.S. intelligence apparatus and the U.S. Air Force became the major drivers in drone development and proliferation.3 Because the intelligence budget is classified, there are no hard figures publicly available that quantify the intelligence community’s contributions to drone development in the United States. It has been credibly estimated that prior to 2000, such contributions made up about 40% of total drone research and development (R&D) expenditures, with the U.S. Air Force being the other major source of development funds for drone research by U.S. military contractors.4 In the early 1990s, as part of a classified weapons project, the U.S. Air Force and the CIA underwrote and guided the development and production of what became the Predator UAV, the first war-fighting drones that were initially deployed in ISR missions during the Balkan wars in 1995. General Atomics Aeronautical Systems (GA-SI), an affiliate of privately held, San Diego-based company General Atomics, produced the first Predator UAVs – now known as Predator A – with research and development funding from Pentagon, the Air Force and a highly secret intelligence organization called the National Reconnaissance Organization.5 The 1995 deployment of the unarmed Predator A by the CIA and Air Force sparked new interest within the U.S. military and intelligence apparatus, resulting in at least $600 million in new R&D contracting for drones with General Atomics. According to a U.S. Air Force study, “The CIA’s UAV program that existed in the early 1990’s and that still exists today gave Predator and GA-ASI an important opportunity that laid the foundation for Predator’s success.” The study goes on to document what is known of the collaboration between the intelligence community and General Atomics.6 General Atomics is a privately held firm, owned by brothers Neal and Linden Blue. The Blue brothers bought the firm (which was originally a start-up division of General Dynamics) in 1986 for $50 million and the next year hired Ret. Rear Admiral Thomas J. Cassidy to run GA-SI. The Blue brothers are well connected nationally and internationally with arch-conservative, anti-communist networks. These links stem in part from their past associations with right-wing leaders; one such example being the 100,000-acre banana and cocoa farm Neal Blue co-owned with the Somoza family in Nicaragua, another being Linden Blue’s 1961 imprisonment in Cuba shortly before the Bay of Pigs for flying into Cuban airspace, and especially their record of providing substantial campaign support for congressional hawks.7 In 1997, the U.S. Air Force’s high-tech development and procurement divisions took the first steps toward weaponizing the Predator. This push led to the Air Force’s “Big Safari” rapid high-tech acquisitions program, which proved instrumental in having an armed Predator ready for deployment in 2000. The newly weaponized MQ Predator-B was in action from the first day of the invasion of Afghanistan on October 21, 2001, when a Hellfire missile was fired from a remote operator sitting in an improvised command and control center situated in the parking lot of the CIA headquarters in Langley, Virginia.8 The post-9/11 launch of the “global war on terrorism” opened the floodgates for drone R&D funding and procurement by the CIA and all branches of the U.S. military, led by the Air Force. Starting in Afghanistan, and later in Iraq, the Predator transitioned from an unmanned surveillance aircraft to what General Atomics proudly called a “Hunter-Killer.” Since 2004, the CIA and the Joint Special Operations Command, a covert unit of the U.S. military, have routinely made clandestine strikes in Pakistan and more recently in Yemen and Somalia. These clandestine strikes increased during the first Obama Administration and continued into the second amid growing criticism that drone strikes were unconstitutional and counterproductive.9 The rise of the Predators along with later drone models produced by General Atomics – the Reaper, Guardian and Avenger drones – can be attributed to aggressive marketing, influence-peddling and lobbying initiatives by General Atomics and General Atomics Aeronautical Systems (GA-SI). The selling of the Predator could also count on the close personal ties forged over decades in the military-industrial complex, which resulted in key R&D grants from the military and intelligence sectors. Another important factor in the Predator’s increasing popularity has been General Atomics’ willingness to adapt models to meet varying demands from DOD, DHS and the intelligence community for different armed and unarmed variants. Also working in General Atomics favor is its ongoing commitment to curry favor in Congress with substantial campaign contributions and special favors. Speaking at the Citadel on December 11, 2001, President George W. Bush underscored the Predators’ central role in U.S. global counterterrorism missions: “Before the war, the Predator had skeptics because it did not fit the old ways. Now it is clear the military does not have enough unmanned vehicles.”10 At the time, there was widespread public, media and congressional enthusiasm for UAVs where suspected terrorists were purportedly killed with surgical precision while UAV pilots sat in front of video screens out of harm’s way drinking coffee. Little was known then about the high-accident rates for the UAVs or the shocking collateral damage from their targeted strikes. Nor was it well known that the Predators were being piloted from command and control centers at the CIA and at Creech Air Force Base in Nevada. PREDATORS ALIGHT ON THE BORDER In the late-1990s, about the same time that the U.S. Border Patrol started contracting for ground-based electronic surveillance, the agency also began planning to integrate drone surveillance into ground-based electronic surveillance systems. It is also when it began the practice of entering into sole-source contracts with high-tech firms.11 The Border Patrol’s grand high-tech plan was to integrate drone ISR operations with its planned Integrated Surveillance Intelligence System (ISIS).12 The plan, albeit never detailed in the project proposal, was to integrate geospatial images from yet-to-be acquired Border Patrol UAVs into an elaborate command, control and communications systems managed by the Border Patrol – an agency not known for its high-level technical or management skills.13 Soon after the CIA and the U.S. Air Force began flooding General Atomics with procurement contracts for armed Predators in 2001, disarmed Predator UAVs were summoned for border security duty. In 2003, the Border Patrol – with funding not from the Customs and Border Protection (CBP) budget but rather from the Homeland Security’s newly created Science and Technology Directorate – began testing small, relatively inexpensive UAVs for border surveillance. In 2005, CBP took full control over the DHS drone program, with the launch of its own Predator drone program under the supervision of the newly created Office of Air and Marine (OAM). OAM was a CBP division that united all the aerial and marine assets of the Office of the Border Patrol and Immigration and Customs Enforcement (ICE). According to the CBP, “The UAV program focuses operations on the CBP priority mission of anti-terrorism by helping to identify and intercept potential terrorists and illegal cross-border activity.” Tens of billions of dollars began to flow into the Department of Homeland Security for border security – the term that superseded border control in the aftermath of 9/11 – and the DHS drone program was propelled forward. To direct OAM, DHS appointed Michael C. Kostelnik, a retired Air Force major general. During his tenure in the Air Force, Kostelnik supervised weapons acquisitions and was one of the leading players in encouraging General Atomics to quickly equip the Predator with bombs or missiles.14 The more expensive, armed Predator drones and their variants became the preferred border drone as a result of widespread enthusiasm for the surge in Predator operations in Iraq and Afghanistan and the close collaborative relationship that developed between General Atomics Aeronautical Systems and CBP. CBP began using its first Predator for operations in October 2005, but the drone crashed in April 2006 in the Arizona desert near Nogales due an error made by General Atomics’ contracted pilot. Crash investigators from the National Transportation Safety Board found the pilot had shut off the drone’s engine when he thought he was redirecting the drone’s camera. As Kostelnik explained to the Border and Marine Subcommittee of the House Homeland Security Committee, “There was a momentary loss link that switched to the second control” – and the Predator fell out of the sky.15 The Fleet By early 2013, CBP had a fleet of seven Predator drones and three Guardians drones, all stationed at military bases. Two Guardians – Predators modified for marine surveillance – are based at the Naval Air Station in Corpus Christi, Texas, while another patrols the Caribbean as part of a drug war mission from its base at the Cape Canaveral Air Force Station in Florida. Four of the seven Predators are stationed at Libby Army Airfield, part of Fort Huachuca near the Mexican border in southeastern Arizona, while two have homes at the Grand Forks Air Force Base in North Dakota. The tenth Predator drone will also be based at Cape Canaveral. According to the CBP Strategic Air and Marine Plan of 2010, OAM intends to deploy a fleet of 24 Guardians and Predators. In 2008, as part of its acquisition strategy, CBP planned to have the 24-drone fleet ready by 2016, boasting that OAM would then be capable of deploying drones anywhere in national airspace in three hours or less.16 In late 2012, CBP signed a major new five-drone contract with General Atomics. The $443.1 million five-year contract includes $237.7 million for the prospective purchase of up to 14 additional Predators and Predator variations, and $205.4 million for operational costs and maintenance by General Atomics crews.17 This new contract was signed, despite increasing budget restrictions, a series of critical reports by the Congressional Research Service (CRS), Government Accountability Office and the DHS Office of Inspector General, and continuing technical failures and poor results. Only One Source CBP insists that General Atomics Aeronautical Systems is the only “responsible source” for its drone needs and that no other suppliers or servicers can satisfy agency requirements for these $18-20 million drones. According to CBP’s justification for sole-source contracting, U.S. national security would be put at risk if DHS switched drone contractors. In a November 1, 2012 statement titled “Justification for Other than Full and Open Competition,” DHS contends that “The Predator-B/Guardian UAS combination is unmatched by any other UAS available. To procure an alternative system…or support services…would detrimentally impact national security,” most notably due to “decreased interdictions of contraband (e.g., illegal narcotics, undocumented immigrants).” Furthermore, CBP claimed, “The GA-ASI MQ-9 UAS provides the best value to OAM’s documented and approved operational requirements and programmatic constraints. With 38% of planned systems on-online, MQ-9 operations are mature, well-understood, and a critical component of DHS’s daily Homeland Security campaign.” When asked by this author for information documenting specific data, comparative studies, cost-benefit evaluations, record of the achievements of the drone program, or threat assessment to support such conclusions, CBP simply responded: CBP deploys and operates the UAS only after careful examination where the UAS can most responsibly aid in countering threats of our Nation’s security. As threats change, CBP adjusts its enforcement posture accordingly and may consider moving the location of assets.18 II. MORE DRONE BOOSTERISM THAN OVERSIGHT IN CONGRESS The Pentagon, military, intelligence agencies and military contractors are longtime proponents of UAVs for intelligence, surveillance and reconnaissance (ISR) missions. Following President Bush’s declaration of a “global war on terrorism,” the White House became directly involved in expanding drone deployment in foreign wars – especially in directing drone strikes. The most unabashed advocates of drone proliferation, however, are in Congress. They claim drones can solve many of America’s most pressing problems – from eliminating terrorists to keeping the homeland safe from unwanted immigrants. However, there has been little congressional oversight of drone deployments, both at home and abroad. Since the post-9/11 congressional interest in drone issues – budgets, role in national airspace, overseas sales, border deployment and UAVs by law enforcement agencies – drone boosterism in Congress has been devoid of any incipient oversight or governance role. Drones made an appearance in the Senate in the first foray to implement immigration reform, when on January 28, 2013 a bipartisan group of senators argued their proposal legislation would “increase the number of unmanned aerial vehicles and surveillance equipment….”19 Drone promotion by U.S. representatives and senators in Congress pops up in what at first may seem the unlikeliest of places. Annually, House members join with UAS manufacturers to fill the foyer and front rooms of the Rayburn House Office Building with displays of the latest drones – an industry show introduced in glowing speeches by highly influential House leaders, notably Buck McKeon, the Southern California Republican who chairs the House Armed Service Committee and co-chairs the Congressional Unmanned Systems Caucus (CUSC). Advances in communications, aviation and surveillance technology have all accelerated the coming of UAVs to the home front. Yet drones are not solely about technological advances. Money flows and political influence also factor in. Congressional Caucus on Unmanned Systems At the forefront of the money/politics nexus is the Congressional Caucus on Unmanned Systems (CCUS). Four years ago, the CCUS (then known as the House Unmanned Aerial Vehicle Caucus) was formed by a small group of congressional representatives – mainly Republicans and mostly hailing from districts with drone industries or bases. By late 2012, the House caucus had 60 members and had changed its name to encompass all unmanned systems – whether aerial, marine or ground-based.20 This bipartisan caucus, together with its allies in the drone industry, has been promoting UAV use at home and abroad through drone fairs on Capitol Hill, new legislation and drone-favored budgets. CCUS aims to “educate members of Congress and the public on the strategic, tactical, and scientific value of unmanned systems; actively support further development and acquisition of more systems, and to more effectively engage the civilian aviation community on unmanned system use and safety.”21 In late 2012, the caucus comprised a collection of border hawks, immigration hardliners and leading congressional voices for the military contracting industry. The two caucus co-chairs, Howard “Buck” McKeon, R-California, and Henry Cuellar, D-Texas, are well positioned to accelerate drone proliferation. McKeon, whose southern California district includes major drone production facilities, notably General Atomics, is the caucus founder and chair of the House Armed Services Committee. Cuellar, who represents the Texas border district of Laredo, is the ranking member (and former chairman) of the House Subcommittee on Border and Maritime Security. Other caucus members include Brian Bilbray (R-Calif.), who heads the House Immigration Reform Caucus; Candice Miller (R-Minn.), who heads the Homeland Security subcommittee that reviews the air and marine operations of DHS; Joe Wilson (R-SC); Jerry Lewis (R-Calif.); Dana Rohrabacher (R-Calif.); Loretta Sanchez (D-Calif.); and Duncan Hunter (R-Calif.). Eight caucus members were also members of the powerful House Appropriations Committee in the 112th Congress. The caucus and its leading members (along with drone proponents in the Senate) have played key roles in drone proliferation at home and abroad through channeling earmarks to Predator manufacturer General Atomics, prodding the Department of Homeland Security to establish a major drone program, adding amendments to authorization bills for the Federal Aviation Administration and Department of Defense to ensure the more rapid integration of UAVs into the national airspace, and increasing annual DOD and DHS budgets for drone R&D and procurements. To accelerate drone acquisitions and deployment at home, Congress has an illustrative track record of legislative measures (see accompanying box). Congressional support for the development and procurement of Predators dates back to 1996, and is reflected in the defense and intelligence authorization acts. An Air Force-sponsored study of the Predator’s rise charted the increases mandated by the House Armed Service and the House Intelligence committees over the Predator budget requests made by the Air Force in its budgets requests. Between 1996 and 2006 (ending date of study), “Congress has recommended an increase, over and above USAF requests, in the Predator budget for nearly 10 years in a row. This has resulted in a sum total increase of over a half a billion dollars over the years.”22 Association of Unmanned Vehicle Systems CCUS cosponsors the annual drone fete with the Association of Unmanned Vehicle Systems International (AUVSI), an industry group that brings together the leading drone manufacturers and universities with UAV research projects. AUVSI represents the interests in the expansion of unmanned systems expressed by many of the estimated 100 U.S. companies and academic institutions involved in developing and deploying the some 300 of the currently existing UAV models.23 The drone association has a $7.5-million annual operating budget, including $2 million a year for conferences and trade shows to encourage government agencies and companies to use unmanned aircraft.24 AUVSI also has its own congressional advocacy committee that is closely linked to the caucus. The keynote speaker at the drone association’s annual conference in early 2012 was Representative McKeon. The congressman was also the featured speaker at AUVSI’s AIR Day 2011, in recognition, says AUVSI’s president, that Congressman McKeon “has been one of the biggest supporters of the unmanned systems community.” The close relationship between the congressional drone caucus and AUVSI was reflected in a similar relationship between CBP/OAM and AUVSI. Tom Faller, the CBP official who directed the UAV program at OAM, joined the AUVSI 23-member board-of-directors in August 2011, a month before the association hosted a technology fair in the foyer of the Rayburn House Office Building. OAM participated in the fair. Faller resigned from the unpaid position on Nov. 23, 2011 after the Los Angeles Times queried DHS about Faller’s unpaid position in the industry association. Faller is currently subject of a DHS internal ethics-violation investigation.25 Contracts, contributions, earmarks and favors Once a relatively insignificant part of the military-industrial complex, the UAV development and manufacturing sector is currently expanding faster than any other component of military contracting. Drone orders from various federal departments and agencies are rolling in to AUVSI corporate members, including such leading military contractors as General Atomics, Lockheed Martin and Northrop Grumman.26 (Unlike most major military contractors, General Atomics is not a corporation but a privately held firm, whose two major figures are Linden and Neal Blue, both of whom have high security clearances) U.S. government drone purchases – not counting contracts for an array of related UAV services and “payloads” – rose from $588 million to $1.3 billion over the past five years.27 The FY2013 DOD budget includes $5.8 billion for UAVs, which does not include drone spending by the intelligence community, DHS or other federal entities. The Pentagon says that its “high-priority” commitment to expenditures for drone defense and warfare has resulted in “strong funding for unmanned aerial vehicles that enhance intelligence, surveillance, and reconnaissance capabilities.”29 While the relationship between increasing drone contracts and the increasing campaign contributions received by

drone caucus members can only be speculated, caucus members are favored recipients of contributions by AUVSI members. In the 2010 and 2012 election cycles, political action committees associated with companies that produce drones donated more than $2.4 million to members of the congressional drone caucus.30 The leading recipient was McKeon, with Representative Silvestre Reyes, the influential Democrat from El Paso (who lost his seat in the 2012 election), coming in a close second.31 General Atomics counted among McKeon’s top five contributors in the last election. (See Figure 1) Frank W. Pace, the director of General Atomics Aeronautical Systems, contributed to two candidates – Buck McKeon and Jerry Lewis – during the 2012 electoral campaign. (See Figure 2) Who were the top recipients of the General Atomics campaign contributions in the 2012 cycle? Four of the top five recipients were not surprising – Buck McKeon, Jerry Lewis, Duncan Hunter and Brian Bilbray – given their record of support for UAVs, and their position among the most influential drone caucus members. (See Figure 3) The relationship that has been consolidating between General Atomics and the U.S. Air Force since the early 1990s has been mediated and facilitated in Congress by influential congressional representatives, led by southern Californian Republican Rep. Jerry Lewis, a member of the House Appropriations Defense Committee and vice-chairman of the House Permanent Select Committee on Intelligence. Lewis, a favored recipient of General Atomics campaign contributions, used his appropriations influence to ensure that the Air Force gained full control of the UAV program by 1998. Lewis, a prominent member of the “Drone Caucus,” has received at least $10,000 every two years in campaign contributions from General Atomics’ political action committee – $80,000 since 1998, according to OpenSecrets.org. During the 2012 campaign cycle, General Atomics was the congressman’s top campaign donor.32 The top ranking recipient of General Atomics’ campaign contributions is not a CUSC member. Senator Diane Feinstein’s (D-Calif.) contributions from General Atomics easily placed her at the top of the list. Feinstein, who chairs the powerful Senate Intelligence Committee, was also favored in campaign contributions by Linden Blue, the president of General Atomics. (See Figure 4) Senator Feinstein has been a highly consistent supporter of the intelligence community and military budgets. Her failure to oppose the clandestine drone strikes ordered by the White House and CIA have sparked widespread criticism by those who argue the strikes are unconstitutional, illegal under international law and counterproductive as a counterterrorism tactic.33 In 2012, General Atomics was Feinstein’s third largest campaign contributor, while other leading contributors were the military contractors General Dynamics (from which General Atomics emerged), BAE Systems and Northrup Grumman.34 Feinstein’s connections to General Atomics extend beyond being top recipient of their campaign contributions. Rachel Miller, a former (2003-2007) legislative assistant for Feinstein, has served as a paid lobbyist for General Atomics, both working directly for the firm (in 2011) and as a General Atomics lobbyist employed by Capitol Solutions (2009 - present), one of the leading lobbying firms contracted by General Atomics.35 And did you know that Linden Blue plans to marry Retired Rear Adm. Ronne Froman? Few others knew about the engagement of this high-society San Diego couple until Senator Feinstein announced the planned marriage at a mid-November 2012 meeting of the downtown San Diego business community – news that quickly appeared in the Society pages of the San Diego Union-Tribune. There has been no explanation offered why Feinstein broke this high-society news, but the announcement certainly did point to the senator’s likely personal connections to Blue and Froman (who was hired by General Atomics as senior vice-president in December 2007 and has since left the firm).36 Campaign contributions and personal connections create goodwill and facilitate contracts. General Atomics also counts on the results produced by a steady stream of lobbying dollars – which have risen dramatically since 2003, and been averaging $2.5 million annually since 2005. In 2012, General Atomics spent $2,470,000 lobbying Congress.37 Congressional earmarks were critical to the rise of the Predator, both its earlier unarmed version as well as the later “Hunter-Killer.” The late senator Daniel K. Inouye, the Hawaii Democrat who chaired the Senate Appropriations Committee, told the New York Times that if the House ban on commercial earmarks that was introduced in 2010 had been in effect earlier, ‘’we would not have the Predator today.’’ Tens of millions of dollars in congressional earmarks in the 1990s went to General Atomics and other military contractors for the early development of what became the Predator program, reported the New York Times.38 Inouye was a source of a number of these multimillion earmarks for General Atomics, whose large campaign contributions to the influential Hawaii senator from 1998 to 2012 ($5000 in this last campaign) could be regarded as thank-you notes since Inouye faced insignificant political opposition. Besides campaign contributions, General Atomics routinely hands out favors to congressional representatives thought likely to support drone proliferation. A 2006 report by the Center for Public Integrity identified Jerry Lewis as one of two congressional members and more than five dozen congressional staffers who traveled overseas courtesy of General Atomics. The center’s report, The ‘Top Gun’ of Travel, observed this “little-known California defense contractor [has] far outspent its industry competitors on travel for more than five years — and in 2005 landed promises of billions of dollars in federal business.” Most of this business was in the form of drone development and procurement by the Pentagon and DHS. Questioned about this pattern of corporate-sponsored trips, Thomas Cassidy, founder of General Atomics Aeronautical Systems, said, “[It’s] useful and very helpful, in fact, when you go down and talk to the government officials to have congressional people go along and discuss the capabilities of [the plane] with them,” A follow-up investigation by the San Diego Union-Tribune reported, “Most of that was spent on overseas travel related to the unmanned Predator spy plane made by General Atomics Aeronautical Systems, an affiliated company.”39 Looking desperately for oversight In practice, there’s more boosterism than effective oversight in the House Homeland Security Committee and its Subcommittee on Border and Maritime Security, which oversees DHS’s rush to deploy drones to keep the homeland secure. The same holds true for most of the more than one hundred other congressional committees that purportedly oversee the DHS and its budget.40 Since DHS’s creation, Congress has routinely approved annual and supplementary budgets for border security that have been higher than those requested by the president and DHS. CCUS member and chair of the House Border and Maritime Security subcommittee, Representative Candice Miller, R-Michigan, is effusive and unconditional in her support of drones. Miller described her personal conviction that drones are the answer to border insecurity at the July 15, 2010 subcommittee hearing on UAVs.41 “You know, my husband was a fighter pilot in Vietnam theater, so—from another generation, but I told him, I said, ‘Dear, the glory days of the fighter jocks are over.’” “The UAVs, the Unmanned Aerial Vehicles are coming,” continued Miller, “and now you see our military siting in a cubicle sometimes in Nevada, drinking a Starbucks, running these things in theater and being incredibly, incredibly successful.” The uncritical drone boosterism in Congress was underscored in a Washington Post article on the use of drones for border security. In his trips to testify on Capitol Hill, Kostelnik said he had never been challenged in Congress about the appropriate use of homeland security drones. “Instead, the question is: ‘Why can’t we have more of them in my district?’” remarked the OAM chief.42 Since 2004, the DHS’s UAV program has drawn mounting concern and criticism from the government’s own oversight and research agencies, including the Congressional Research Service, the Government Accountability Office and the DHS’s own Office of Inspector General.43 These government entities have repeatedly raised questions about the cost-efficiency, strategic focus and performance of the homeland security drones. Yet, rather than subjecting DHS officials to sharp questioning, the congressional committees overseeing homeland security and border security operations have, for the most part, readily and often enthusiastically accepted the validity of undocumented assertions by testifying CBP officials. The House Subcommittee on Border and Maritime Security has been especially notorious for its lack of critical oversight. As part of the budgetary and oversight process, the House and Senate committees that oversee DHS have not insisted that CBP undertake cost-benefit evaluations, institute performance measures, implement comparative evaluations of its high-tech border security initiatives, or document how its UAV program responds to realistic threat assessments. Instead of providing proper oversight and ensuring that CBP/OAM’s drone program is accountable and transparent, congressional members from both parties seem more intent on boosting drone purchases and drone deployment. As CBP was about to begin its first drone deployments in 2005 as part of the Operation Safeguard pilot project, the Congressional Research Service observed: “Congress will likely conduct oversight of Operation Safeguard before considering wider implementation of this technology.” Unfortunately, Congress never reviewed the results of Operation Safeguard pilot project, and CBP declined requests by this writer to release the report of this UAV pilot project.44 Congress has been delinquent in its oversight duties. In addition to the governmental research and monitoring institutions, it has been mainly the nongovernmental sector – including the American Civil Liberties Union, Electronic Frontier Foundation, Center for Constitutional Rights, and the Center for International Policy – that has alerted the public about the lack of transparency and accountability in the DHS drone program and the absence of responsible governance over the domestic and international proliferation of UAVs. In September 2012, the Senate formed its own bipartisan drone caucus, the Senate Unmanned Aerial Systems Caucus, co-chaired by Jim Inhofe (R-Okla.) and Joe Manchin (D-W.Va.). “This caucus will help develop and direct responsible policy to best serve the interests of U.S. national defense and emergency response, and work to address any concerns from senators, staff and their constituents,” said Inhofe.45 It is still too early to ascertain if the Senate’s drone caucus will follow its counterpart in the House in almost exclusively focusing on promoting drone proliferation at home and abroad. It is expected, however, that caucus members will experience increased flows of campaign contributions from the UAS industry. While Senator Manchin just won his first full-term in the 2012 election, Senator Inhofe has been favored by campaign contributions from military contractors, including General Atomics ($14,000 in 2012), since he took office in 2007. His top campaign contributor was Koch Industries. For its part, AUVSI, the drone industry association, gushed in its quickly offered commendation. “I would like to commend Senators Inhofe and Manchin for their leadership and commitment in establishing the caucus, which will enable AUVSI to work with the Senate and stakeholders on the important issues that face the unmanned systems community as the expanded use of the technology transitions to the civil and commercial markets,” said AUVSI President and CEO Michael Toscano. “It is our hope to establish the same open dialogue with the Senate caucus as we have for the past three years with the House Unmanned Systems Caucus,” the AUVSI executive added.46 There is rising citizen concern about drones and privacy and civil rights violations. The prospective opening of national airspace to UAVs has sparked a surge of concern among many communities and states – eleven of which are considering legislation in 2013 that would restrict how police and other agencies would deploy drones. But paralleling new concern about the threats posed by drone proliferation is local and state interest in attracting new UAV testing facilities and airbases for the FAA and other federal entities. FAA and industry projections about the number of UAVs (15,000 by 2020, 30,000 by 2030) that may be using national airspace – the same space used by all commercial and private aircraft – have sparked a surge of new congressional activism, with several new bills introduced by non-drone caucus members in the new Congress that respond to the new fears about drone proliferation. Yet there is no one committee in the House or the Senate that has assumed the responsibility for UAV oversight to lead the way toward creating a foundation of laws and regulations establishing a political framework for UAV use going

forward. At this point, there is no federal agency or congressional committee that is providing oversight over drone proliferation – whether in regard to U.S. drone exports, the expanding drone program of DHS, drone-related privacy concerns, or UAV use by private or public firms and agencies. Gerald Dillingham, top official of the Government Accountability Office, testified in Congress

about this oversight conundrum. When asked which part of the federal government was responsible for regulating drone proliferation in the interest of public safety and civil rights, the GAO director said, “At best, we can say it’s unknown at this point.”47 III. CROSSOVER DRONES Homeland security drones are expanding their range beyond the border, crossing over to local law enforcement agencies, other federal civilian operations, and into national security missions. BORDER SECURITY TO LOCAL SURVEILLANCE The rapid advance of drone technology has sparked interest by police and sheriff offices in acquiring drones. The federal government has closely nurtured this new eagerness. Through grants, training programs and “centers of excellence,” the Departments of Justice and Homeland Security have been collaborating with the drone industry and local law enforcement agencies to introduce unmanned aerial vehicles to the homeland. One example is DHS’s Urban Areas Security Initiative (UASI), a Federal Emergency Management Agency (FEMA) program established to assist communities with counterterrorism projects that provides grants to enable police and sheriffs departments to launch their own drone programs. In 2011, a DHS UASI grant of $258,000 enabled the Montgomery County Sheriffs Office in Texas to purchase a ShadowHawk drone from Vanguard Defense Industries. DHS UASI grants also allowed the city of Arlington, Texas to buy two small drones.48 Miami also counted on DHS funding to purchase its UAV. According to DHS, UASI “provides funding to address the unique planning, organization, equipment, training, and exercise needs of high-threat, high-density urban areas, and assists them in building an enhanced and sustainable capacity to prevent, protect against, respond to, and recover from acts of terrorism.”49 However, in the UASI project proposals there is little or no mention of terrorism or counterterrorism. Instead, local police forces want drones to bolster their surveillance capabilities and as an adjunct to their SWAT teams and narc squads. DHS is not the only federal department

promoting drone deployment in the homeland. Over the past four decades, the Department of Justice’s criminal-justice assistance grants have played a central role in shaping the priorities and operations of state and local law enforcement.50 Through its National Institute of Justice, the Department of Justice (DOJ) has been working closely with industry and local law enforcement to “develop and evaluate low-cost unmanned aircraft systems.”51 In 2011, National Institute of Justice grants went to such large military contractors and drone manufacturers as Lockheed Martin, ManTech and L-3 Systems to operate DOJ-sponsored “centers of excellence” devoted to the use of technology by local law enforcement for surveillance, communications, biometrics and sensors.53 In an October 4, 2012 presentation to the National Defense Industrial Association, OAM chief Kostelnik explained that the CBP drones were not limited to border control duties. The OAM was, he said, the “leading edge of deployment of UAS in the national airspace.” This deployment wasn’t limited to what are commonly understood homeland security missions but extended to “rapid contingency supports” for “Federal/State/Local missions.” According to CBP: OAM provides investigative air and marine support to Immigration and Customs Enforcement, as well as other federal, state, local, and international law enforcement agencies.53 Incidents involving CBP drones in local law enforcement operations have surfaced in media reports, but CBP has thus far not

released a record of its support for local and state police, despite repeated requests by media and research organizations. DHS and CBP/OAM in particular have failed to define the legal and constitutional limits of its drone operations. Rather than following strict guidelines about the scope of its mission and the range of homeland security drones, Kostelnik argued before the association of military contractors that “CBP operations [are] shaping the UAS policy debate” in the United States. According to Kostelnik, the CBP’s drones are “on the leading edge in homeland security.” This cutting edge role of the CBP/OAM drones not only extends to local and state operations, including support for local law enforcement, but also to national security. “[The] CBP UAS deployment vision strengthens the National Security Response Capability.” Border Security to

National Security Most of the concern about the domestic deployment of drones by DHS has focused on the crossover to law-enforcement missions that threaten privacy and civil rights – and without more regulations in place will accelerate the transition to what critics call a “surveillance society.” Also worth public attention and congressional review is the increasing interface between border drones and national security and military missions. The prevalence of military jargon used by CBP officials – such as “defense in depth” and “situational awareness” – points to at least a rhetorical overlapping of border control and military strategy. Another sign of the increasing coincidence between CBP/OAM drone program and the military is that the commanders and deputies of OAM are retired military officers. Both Major General Michael Kostelnik and his successor Major General Randolph Alles, retired from U.S. Marines, were highly placed military commanders involved in drone development and procurement. Kostelnik was involved in the development of the Predator by General Atomics since the mid-1990s and was an early proponent of providing Air Force funding to weaponize the Predator. As commander of the Marine Corps Warfighting Laboratory, Alles was a leading proponent of having each military branch work with military contractors to develop their own drone breeds, including near replicas of the Predator manufactured for the Army by General Atomics.57 promoting – and justifying – the DHS drone program, Kostelnik routinely alluded to the national security potential of drones slated for border security duty. On several occasions Kostelnik pointed to the seamless interoperability with DOD UAV forces. At a moment’s notice, Kostelnik said that OAM could be “CHOP’ed” – meaning a Change in Operational Command from DHS to DOD.58 DHS has not released operational data about CBP/OAM drone operations. Therefore, the extent of the participation of DHS drones in domestic and international operations is unknown. But statements by CBP officials and media reports from the Caribbean point to a rapidly expanding participation of DHS Guardian UAVs in drug-interdiction and other unspecified operations as far south as Panama. CBP states that OAM “routinely provides air and marine support to other federal, state, and local law enforcement agencies” and “works with the U.S. military in joint international anti-smuggling operations and in support of National Security Special Events [such as the Olympics].” According to Kostelnik, CBP planned a “Spring 2011 deployment of the Guardian to a Central American country in association with Joint Interagency Task Force South (JIATF-South) based at the naval station in Key West, Florida.59 JIATF-South is a subordinate command to the United States Southern Command (USSOUTHCOM), whose geographical purview includes the Caribbean, Central America and South America. In mid-2012, CBP/OAM participated in a JIATF-South collaborative venture called “Operation Caribbean Focus” that involved flight over the Caribbean Sea and nations in the region – with the Dominican Republic acting as the regional host for the Guardian operations, which CBP/OAM considers a “prototype for future transit zone UAS deployments.” CBP says that OAM drones have not been deployed within Mexico, but notes that “OAM works in collaboration with the Government of Mexico in addressing border security issues,” without specifying the form and objectives of this collaboration.60 As part of the U.S. global drug war and as an extension of border security, unarmed drones are also crossing the border into Mexico. The U.S. Northern Command has acknowledged that the U.S. military does fly a $38-million Global Hawk drone into Mexico to assist the Mexico’s war against the drug cartels.61 Communities, state legislatures and even some congressional members are proceeding to enact legislation and revise ordinances to decriminalize or legalize the consumption of drugs, especially marijuana, targeted by the federal government’s drug war of more than four decades. At the same time, DHS has been escalating its contributions to the domestic and international drug war – in the name of both homeland security and national security. Drug seizures on the border and drug interdiction over coastal and neighboring waters are certainly the top operative priorities of OAM. Enlisting its Guardian drones in SOUTHCOM’s drug interdiction efforts underscores the increasing emphasis within the entire CBP on counternarcotic operations. CBP is a DHS agency that is almost exclusively focused on tactics. While CBP as the umbrella agency and the Office of the Border Patrol and OAM all have strategic plans, these plans are marked by their rigid military frameworks, their startling absence of serious strategic thinking, and the diffuse distinctions between strategic goals and tactics. As a result of the border security buildup, south-north drug flows (particularly cocaine and more high-value drugs) have shifted back to marine smuggling, mainly through the Caribbean, but also through the Gulf of Mexico and the Pacific.62 Rather than

reevaluating drug prohibition and drug control frameworks for border policy, CBP/OAM has rationalized the procurement of more UAVs on the shifts in the geographical arenas of the drug war – albeit couching the tactical changes in the new drug war language of “transnational criminal organizations” and “narcoterrorism.” The overriding framework for CBP/OAM operations is evolving from border security and homeland security to national security, as recent CBP presentations about its Guardian deployments illustrates. Shortly before retiring after seven years as OAM first chief, Major General Kostelnik told a gathering of military contractors: “CPB’s UAS Deployment Vision strengthens the National Security Response Capability.”63 He may well be right, but the U.S. public and Congress need to know if DHS plans to institute guidelines and limits that regulate the extent of DHS operational collaboration with DOD and the CIA. IV. No Transparency, No Accountability, No Defined

Limits to Homeland Security Drone Missions The UAV program of CBP’s Office of Air and Marine is not top secret – there are no secret ops, no targeted killings, no “signature” strikes against suspected terrorists, no clandestine bases – like the CIA and U.S. military UAV operations overseas. While the UAV program under DHS isn’t classified, information about the program is scarce – shielded by evasive program officials, the classification of key documents, and the failure of CBP/OAM to share information about the number, objectives and performance of its UAV operations. DHS has also not been forthcoming about its partnerships and shared missions with local law enforcement, foreign governments and the U.S. military and intelligence sectors. CBP has kept a tight lid on its drone program. Over the past nine years, CBP has steadily expanded its UAV program without providing any detailed information about the program’s strategic plan, performance and total costs. Information about the homeland security drones has been limited, for the most part, to a handful of CBP announcements about new drone purchases and a series of unverifiable CBP statistics about drone-related drug seizures and immigrant arrests. Testimony in House and Senate hearings about the role of drones in border security by CBP has been restricted, with few exceptions, to undocumented assertions and anecdotes about the achievements of the border drones. CBP has declined to share documents about its drone program with the Center for International Policy and other public-education organizations, asserting, among other reasons, that they are “law-enforcement sensitive” or not in their possession. These requested documents include the OAM strategic plan (which calls for two dozen drones), the report of the “pilot study” of Predators organized with General Atomics in 2004 that CBP claims proved their value as border security instruments, and a 2010 report to Congress in reference to its UAV program. The three reports cited above were all referenced by DHS’s Office of Inspector General in a report published in May 2012.64 DHS has also failed to respond favorably to public-records requests by the Electronic Frontier Foundation for “records and logs of CBP drone flights conducted in conjunction with other agencies.”65 It is unlikely that the CBP/OAM program is involved in the type of drone strikes that have sparked rage, indignation over civil rights violations, and counterattacks by nonstate terrorists. Despite the lack of transparency, it is highly unlikely that CBP Predators and Guardians have been the

tools of “hunter-killer” missions of CIA and military Predators, Hunters and Reapers. Still, the lack of transparency and accountability that characterizes the homeland security drone program is worrisome – not least because of the commitments of hundreds of millions of dollars to these operations. At least several hundreds of millions of dollars have been spent – based on procurement records – but we don’t even know the entire financial commitment to homeland drones because DHS has never provided an accounting of all procurement, maintenance, staffing, data-processing and service contract expenses. Clearly, CBP needs to be more transparent and accountable. Of the 14 DHS agencies, it receives the largest portion – 21 percent – of the $59 billion annual DHS budget.66 Although other DHS agencies – such as the Federal Emergency Management Agency (FEMA) and U.S. Citizenship and Immigration Services (which process visas and naturalization petitions) – are experiencing budget cuts (8 percent decrease for FEMA), CBP is receiving a 2 percent increase, even as illegal immigration flows have plummeted to historic lows. Yet, it is more than a budget concern. Shortly before retiring at the end of 2012, Major General Kostelnik asserted that the “Air and Marine UAS Operations Remain on the Leading Edge” – the title of his October

presentation of a military contractors association. It’s not that the DHS itself has become the leading edge of drone technology. Kostelnik was referring more to the way CBP/OAM is pushing the border security envelope. Under the new OAM office established under Kostelnik’s leadership, these UAS operations have, in Kostelnik’s words, done much more than complement other manifestations of the low-tech and high-tech border security buildup. Among other things, the unmanned systems, according to CBP, are: “Shaping the UAS policy debate;” “Strengthen[ing] the National Security Response Capability;” Providing “rapid contingency responses” to federal, state, and local agencies; Functioning as the “leading edge deployment of UAS in the national airspace;” and Increasing involvement in “Caribbean and foreign deployments.” With the UAV program, as with other border-security operations (in particular its many high-tech initiatives), CBP has acted as if exempt from the transparency,

accountability and performance evaluations that apply to other federal agencies. Much like the military and the CIA, CBP shields itself behind its post-9/11 “security” mission.

Police Adv

Undermines police relations Drones skew public perception of law enforcementLOMBERG 2015

(Jason Lomberg, editor at ECNMag, 4-9-15, “Why arming drones is a very bad idea” http://www.ecnmag.com/blogs/2015/04/why-arming-domestic-drones-very-bad-idea)

Deploying drones to perform the same functions as flesh-and-blood police officers keeps the latter out of harm’s way. And putting a drone in jeopardy is far less likely to result in anyone’s death – a drone is worth less than a human life, so drone operators wouldn’t employ self-defense as zealously as real-life humans (and the drones probably wouldn’t be armed with lethal countermeasures,

anyway). But I cannot overstate how serious a PR disaster this could become. I’m general very supportive of our nation’s law enforcement agencies,

but I also understand the PR campaign that guides the public’s perception of the police . Whether an individual officer was justified or not

is almost irrelevant in the greater scheme of things. What matters is which narrative the public embraces. And what narrative can a soulless automaton shooting pepper spray possibly convey but fear? I can’t imagine any instance where a drone injuring protestors – justified or not – could possibly be seen favorably. Has an unruly crowd switched from constitutionally protected free speech to general mayhem? The best way to garner sympathy for their cause is to attack them with a flying personification of fear. Sure, using a drone would ensure the

incident in question is filmed, but the PR issues are hard to dismiss. Oh, and we’re considering arming domestic drones here in the U.S. While the usual anti-drone rhetoric focuses on the privacy and associated surveillance issues, at least one company, Vanguard Defense

Industries, wants to arm domestic drones with buckshot, tear gas, grenades, and less-lethal capabilities. The idea of a drone patrolling Mainstreet, U.S.A., armed with anything more than a camera (or claws to grasp a package) is terrifying.

Solvency

Congress

Congress key to effective privacy restrictions Scientific American 13

(Scientific American is a leading journal on Sciences, 3/19/13, “As Spy Drones Come to the U.S., We Must Protect Our Privacy” http://www.scientificamerican.com/article/spy-drones-come-us-we-must-protect-privacy/?print=true)

Already the faa has permitted a handful of law-enforcement agencies to operate drones on a short-term basis. The limited regulations accompanying those permits (which, thankfully, preclude attaching any weapons to the drones) are insufficient to protect the privacy of citizens. Perhaps this should not be surprising. The faa is not in the business of privacy protection. Its primary concern is with the

safety of domestic airspace. No federal agency, in fact, can be held accountable if drones are not used responsibly and in a way that respects the Fourth Amendment. As such, Congress should proactively enact laws that confine domestic drones to reasonable, useful purposes. Several sensible ideas were proposed during the last session of Congress, including a bill that would have outlawed drone spying without a warrant and instituted important transparency and accountability measures for their use. But that bill failed to make it out of a subcommittee. The present Congress must be more active than its predecessor in heading off this clear and impending threat to personal privacy.

Congress should take action on drone surveillance and current regulations and ideas fail Jenkins 14(Ben, University of Kentucky College of Law, January 2014, “Watching the Watchmen: Drone Privacy and the Need for Oversight”, http://law-apache.uky.edu/wordpress/wp-content/uploads/2014/01/9-Jenkins.pdf)This note argues that in order to safeguard Americans’ privacy against government drone surveillance in an actively growing field, Congress should implement legislation that provides a framework for protection while allowing for industry growth and innovation. Although several bills are pending, it is uncertain if or when those bills will pass. While it would be a large step towards

ensuring privacy protection from drone surveillance if the proposed bills pass, there is still room for improvement. Even the most promising bill,

the Drone Aircraft Privacy and Transparency Act of 2013 (DAPTA),8 fails to provide a process for ongoing oversight of drone operators to ensure transparency and continued compliance with the Act’s privacy protections. DAPTA and other pending legislation should be amended to charge a single agency with responsibility for drone privacy oversight, including audits to make sure drone operators comply with privacy regulations. Operators should be required to submit ongoing reports of their data collection, retention, and

disposal procedures to the agency, and these reports should be gathered and submitted to Congress annually. Proper legislative action would ensure that the constitutional right to privacy is not overrun by rapidly growing technologies, diminishing privacy norms, and heightened security interests. With proper privacy protections in place, society could be more receptive to increased use, development, and application of drones in daily life . Part I of this Note provides background on drones: their nature, use, technology, and the current Fourth Amendment jurisprudence relevant to such. Part II explains why drones present a unique threat to privacy and addresses current shortfalls in Fourth Amendment jurisprudence and in legislative efforts to address privacy concerns connected with their widespread use. Part III suggests amendments to proposed legislation to address shortfalls therein, concluding that proper anticipatory action and ongoing oversight are necessary to ensure that police technology does not erode the minimum expectations of privacy guaranteed by the Fourth Amendment.

Congressional action K2 public perception about dronesBlack 13

(J. Tyler, received a B.A. in Political Science from Emory University and a J.D., cum laude, from Washington and Lee University, where he was a Lead Articles Editor of the Washington and Lee Law Review, , 06/2013, “Over Your Head, Under the Radar: An Examination of Changing Legislation, Aging Case Law, and Possible Solutions to the Domestic Police Drone Puzzle,” http://scholarlycommons.law.wlu.edu/do/search/?q=author_lname%3A%22Black%22%20author_fname%3A%22J.%22&start=0&context=2035930)

Before courts ever become involved, some solutions will likely originate from a number of federal, state, or local legislative bodies. These legislative measures will become an important fix for Fourth Amendment holes while aerial observation jurisprudence catches up with changing

circumstances. Most importantly, Congress should pass a detailed, comprehensive, and enforceable law—the

PAPA or DAPTA bills would be a significant start—that would reduce public anxiety about drones, inform the public about how and when the government uses this technology, and concretely protect Fourth Amendment liberties. Any bill with a realistic hope of controlling the use of such an inexpensive and nimble technology must impose procedural impediments that act to limit the appeal of widespread employment. The thought of police drones carries with it a 260. See Kyllo v. United States, 533 U.S. 27, 31 (2001) (“At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” (quotations and citation omitted)). 261. Indeed, some degree of privacy has survived the innovations of wiretapping, aerial observation, satellite observation, and sense-enhancing technology. “Technology has produced many and varied means of observation and surveillance. But the fact that something can be done does not make the doing of it constitutional.” State v. Bryant, 950 A.2d 467, 479 (Vt. 2008). 1884 70 WASH. & LEE L. REV. 1829 (2013) visceral Orwellian implication of “Big Brother” intruding where it ought not.262 That fear must not be ignored, lest it be realized. The elimination of drones hovering for extended periods of time without a targeted purpose may substantially abate public fears of a constant surveillance. People may be more inclined to support drones if they are cast in the role of a lifesaving vehicle.263

Requiring a warrant legitimizes FISA courts – squo insufficient to solve Goitein, Patel 2015

(Elizabeth and Faiza, co-directors of the Brennan Center for Justice’s Liberty and National Security Program, 2015, “What Went Wrong With the FISA Court” http://litigation.utahbar.org/assets/materials/2015FedSymposium/3c_What_Went_%20Wrong_With_The_FISA_Court.pdf

Moreover, under current law, the FISA Court does not provide the check on executive action that the Fourth Amendment demands. Interception of Americans’ communications generally requires the government to obtain a warrant based on probable cause of criminal activity. Although some courts have held that a traditional warrant is not needed to collect foreign intelligence, they have imposed strict limits on the scope of such surveillance and have

emphasized the importance of close judicial scrutiny in policing these limits. The FISA Court’s minimal involvement in overseeing programmatic surveillance does not meet these constitutional standards. Fundamental changes are needed to fix these flaws. Following Snowden’s disclosures, several bills were introduced to try to ensure that the court would hear the other side of the argument, generally from some type of public advocate. Other bills addressed the court’s secrecy by requiring the executive branch to declassify significant opinions or release summaries. These proposals would make important improvements, but they do not address the full range of constitutional deficiencies resulting from the changes in law and technology detailed in this report. The problem with the FISA Court is far broader than a particular procedure or rule. The problem with the FISA Court is FISA. The report proposes a set of key changes to FISA to help

restore the court’s legitimacy. • Congress should end programmatic surveillance and require the government to obtain judicial approval whenever it seeks to obtain communications or information involving Americans. This would resolve many constitutional concerns. • Congress should shore up the Article III soundness of the FISA Court by ensuring that the interests of those affected by surveillance are represented in court proceedings, increasing transparency, and facilitating the ability of affected individuals to

challenge surveillance programs in regular federal courts. WhAT WENT WRONG WITH THE FISA COURT | 5 •

Finally, Congress should address additional Fourth Amendment concerns by ensuring that the collection of information under the rubric of “foreign intelligence” actually relates to our national security and does not constitute an end-run around the constitutional standards for criminal investigations. Under today’s foreign intelligence surveillance system, the government’s ability to collect information about ordinary Americans’ lives has increased exponentially while judicial oversight has been reduced to near-nothingness. Nothing less than a fundamental overhaul of the type proposed here is needed to restore the system to its constitutional moorings.

Plan solves for police flexibility – requiring a warrant allows for necessity while preserving 4th ammendment rights Bryan ‘14(Thomas, J.D. and Master’s Degree in International Politics, June 24 2014, “State v. Brossart: Adapting the Fourth Amendment for a Future With Drones”, http://scholarship.law.edu/cgi/viewcontent.cgi?article=3260&context=lawreview)Current legislative initiatives suggest that there is a bipartisan push for legislation to balance the government’s use of UAVs with the public’s privacy concerns.199 Three bills aiming to protect the public’s privacy from increased use of UAVs for civilian government purposes were introduced in the 112th Congress.200 However, these bills have been criticized as overly broad in protecting privacy and severely limiting the government’s ability to use [FOOTNOTE BEGINS] 192. See Starks, supra note 118, at 2090 (noting the potential privacy concerns of widespread UAV use and the need for legislative action). 193. See supra notes 98–105 and accompanying text. 194. United States v. Jones, 132 S. Ct. 945, 956 (Sotomayor, J., concurring), mandamus denied sub nom. In re Jones, 670 F.3d 265 (D.C. Cir. 2012). Scholars have pointed to this language as supporting the adoption of the mosaic theory of the Fourth Amendment. See supra note 108. 195. See Jones, 132 S. Ct. at 956. 196. See supra Part II.C. 197. See Jones, 132 S. Ct. at 963–64 (Alito, J., concurring). 198. Congressional action to regulate the use of emerging practices and technologies for privacy purposes has firm precedents. See id. at 962–63 (discussing legislation passed to deal with Fourth Amendment questions related to wiretapping). 199. See Starks, supra note 118, at 2090, 2092–93 (discussing bipartisan legislative action to address the privacy concerns related to UAVs); see also Associated Press, supra note 125 (noting that concerns over the civil-liberty issues raised by the use of UAVs has led to bipartisan discussions of UAV legislation). 200. See THOMPSON, supra note 145, at 18–19. The bills include the Preserving Freedom from Unwarranted Surveillance Act of 2012 (H.R. 5925, S. 3287), the Preserving American Privacy Act of 2012 (H.R. 6199), and the Farmers’ Privacy Act of 2012 (H.R. 5961). Id. Concerns over the potential dangers the government’s domestic use of UAVs have also been raised in the new 113th Congress, leading to a thirteen-hour filibuster seeking to block the Senate’s approval of the President’s nominee to lead the CIA. See Ed O’Keefe and Aaron Blake, Senator Holds Long Fillibuster to Oppose Obama’s Drone Policy, WASH. POST, Mar. 7, 2013, at A2. 494 Catholic University Law Review [Vol. 63:465 [END FOOTNOTE] UAVs.201 For example, the Preserving American Privacy Act of 2012 would only permit UAV use by law enforcement “except pursuant to [a] warrant and in the investigation of a felony” and excludes all evidence obtained in violation of the Act from criminal proceedings.202 This approach may prevent law enforcement from operating UAVs in open fields for securing large-crowd events or enforcing traffic laws, both of which are permitted under current jurisprudence. The Preserving Freedom from Unwarranted Surveillance Act of 2012 takes a more nuanced approach, prohibiting the warrantless use of a UAV to collect evidence regarding criminal conduct or a violation of a regulation, but specifically allowing UAVs to be used to patrol the border, to prevent imminent danger to life, and to manage situation with high risks of terrorist attacks.203 Yet, this proposed Act is overly restrictive

because it prevents law enforcement from using UAVs in open fields.204 Instead, Congress should find a way to allow law enforcement to use this valuable tool in all necessary circumstances, while also taking into consideration Fourth Amendment rights.205 To accomplish this, Congress should aim to clarify how current principles of Fourth Amendment jurisprudence apply to UAVs and add additional privacy protections that account for their unique capabilities.206 Following current Fourth Amendment principles, stronger privacy protections should be applied to criminal and regulatory investigations and more liberal rules applied to non-invasive uses, such as locating lost persons or assessing damages from natural disasters.207 Similarly, Congress should codify the Fourth Amendment’s strong protection of the home by requiring that a warrant be issued before the government can use UAV-mounted technologies 201. [FOOTNOTE BEGINS] See Starks, supra note 118, at 2095–96 (noting that some members of Congress, local government officials, and UAV industry representatives have expressed concerns that an overregulation of privacy concerns may stifle the industry’s growth and prevent the government from using UAVs for desirable purposes); Tim Adelman, Flurry of ‘Drone’ Bills’ Shows Congress Has Much to Learn, THE HILL (Sept. 20, 2012, 6:59 AM), http://thehill.com/blogs/congressblog/foreign-policy/250597-flurry-of-drone-bills-shows-congress-has-much-to-learn (arguing that Congress is right to consider privacy protection measures as UAV technology becomes widely used, but that such measures should not excessively limit the government’s use of UAV’s). 202. H.R. 6199, 112th Cong. §§ 2–3 (2012). 203. S. 3287, 112th Cong. §§ 3–4 (2012); H.R. 5925, 112th Cong. §§ 2–3 (2012). 204. See THOMPSON, supra note 145, at 18 (showing there is no open fields exception under either form of the bill). 205. See Starks, supra note 118, at 2095 (noting the importance of legislation that does not overly restrict UAV use). 206. See THOMPSON, supra note 145, at 18 (discussing legislation that has restricted government surveillance tools further than the court, and suggesting Congress do the same with UAVs). 207. Jones suggests that the latter category would not constitute a search, as “mere visual observation does not constitute a search.” See United States v. Jones, 132 S. Ct. 945, 950 (2012), mandamus denied sub nom. In re Jones, 670 F.3d 265 (D.C. Cir. 2012). Tim Adelman argues that the use of UAVs to find lost hikers, survey multi-car crashes, and other similar activities are government uses of drones that do not intrude on privacy and should not be discouraged. Adelman, supra note 201. 2014] Adapting the Fourth Amendment for a Future with Drones 495[END FOOTNOTE] to conduct surveillance revealing information about the interior of the home.208 To address privacy concerns of long-term UAV surveillance, Congress should permit surveillance of spaces falling within the open fields doctrine, but place a time limit on aerial surveillance preventing the government from

conducting long-term investigations of individuals without prior judicial approval.209 Lastly, Congressional action should also aim to limit unwanted invasions of privacy by private citizens, which falls outside of the scope of the Fourth Amendment.210

Congress must enact drone reformOyegunle 12 (Ajoke Oyegunle, Oyegunle finished first in the 2012-2013 National Association of Criminal Defense Lawyers’ (NACDL) Diversity Task Force Essay Competition, “Drones in the Homeland: A Potential Privacy Obstruction Under the Fourth Amendment and The Common Law Trespass Doctrine” http://scholarship.law.edu/cgi/viewcontent.cgi?article=1528&context=commlaw)

Additionally, Congress should regulate the use of drones by law enforcement agencies by requiring warrants before using drones to obtain information from individuals. Because of its sophistication and potential for harm, a drone aerial search should be prohibited, unless accompanied by a warrant.2 " The FAA should address the potential ramifications of putting drone technology into the hands of private companies, especially without instituting strict regulations regarding the use of drones. Like other electronic devices, drones might be vulnerable to hackers who can penetrate firewalls and intercept personal data from private individuals. 45 Potentially, drones can be susceptible to attacks by terrorists who hijack them.246 Unregulated use of drones can potentially lead

to a variety of abuses by government agencies using drones to gain unfettered access into homes and businesses. It is a point worth reiterating that the expansion of drones into the national airspace should not be permitted before comprehensive and widely disseminated privacy guidelines are in place. If the FAA does not institute such protections

in its rulemaking, Congress should pass legislation requiring them. In June, Representative Austin Scott of Georgia introduced a House bill entitled, "Preserving Freedom From Unwarranted Surveillance Act of 2012," which proposes necessary privacy safeguards in

response to drones.247 One such privacy measure would prohibit law enforcement from using drones to collect evidence against criminal suspects without a warrant.24 The Senate version of the bill, sponsored by Senator Rand Paul of Kentucky, would reinforce the warrant clause of the Fourth Amendment by requiring the government to obtain a warrant to gather evidence against a criminal suspect. 249 Senator Paul proposed exceptions to the warrant requirement in regard to border patrol and in cases of imminent

threats to life. The judiciary, working in tandem with Congress, should ensure that drone technology does not abridge the right to privacy. Privacy law is ill-equipped to properly address the burgeoning advances in technology without strengthening existing law with a "balancing approach to aerial surveillance." 25' Courts should allow "aerial surveillance of open fields, but mandat[e] stricter scrutiny of surveillance over homes and curtilage ... [to] enable courts to preserve the right to privacy where expectations are highest without placing undue re-strictions on law enforcement."

Congress must enact sweeping domestic drone legislationStepanovich 12 (Amie Stepanovich, Amie Stepanovich is U.S. Policy Manager at Access. Amie is an expert in domestic surveillance, cybersecurity, and privacy law, July 19, 2012, “Using Unmanned Aeiraial Systems Within the Homeland: Security Game-Changer. Hearing Before the Subcomittee on Oversight, Investigations, and Management of the Committee on Homeland Security House of Representatives One Hundred Twelfth Congress Second Session” http://fas.org/irp/congress/2012_hr/uas-homeland.pdf)

Customs and Border Protection Bureau, a DHS component. Earlier this year in a formal petition to the FAA, EPIC urged the agency to conduct a rulemaking to implement privacy rules for domestic drones. EPIC’s petition was joined by more than 100 other organizations, experts, and members of the public who also believed that privacy rules are necessary before drones enter our domestic skies in a more widespread way. The FAA has not yet responded to EPIC’s request for agency

action, and this failure to act means that there is also no administrative framework in place to regulate drones in our skies. As has previously been mentioned, CBP currently operates 10 drones in the United States. The DHS Inspector General recently assessed CBP’s practice in making drones available by other Federal agencies, including the Department of Defense, the FBI, the Secret Service, many local law enforcement agencies, and others. Regarding privacy concerns, the Inspector General said that a standardized process was needed to request CBP drones for nonCBP purposes in order to provide transparency. To the extent that DHS chooses to operate drones within the United States, the agency must develop appropriate regulations to safeguard privacy. As you have indicated, Chairman McCaul, the privacy and security concerns arising from the use of drones needs to be addressed. Several of your colleagues have made

efforts to address some of the privacy threats of drone. However, we believe those efforts are not sufficient. There are several

simple steps that we believe can protect privacy as the use of drones increases in our skies. First, Congress should pass targeted legislation. An initial step would be the passage of Congressman Austin Scott’s bill to limit drone surveillance in the United States in cases where a warrant has not been first obtained. However, to fully address the invasive nature of drones,

new legislation must prohibit nonspecific untargeted drone surveillance, limit the use of drone surveillance data collected, transmitted, stored, or shared, and require notice of drone surveillance operations and policies. The law should also provide for independent audits and oversight. Second, Congress should expressly require

Federal drone operators, including DHS and its components, to implement regulations subject to public notice and comment that address the privacy implications of drone use. Finally, I think Congress should clarify the circumstances under which drones

purchased by CBP in pursuit of its mission may be deployed for other purposes. The failure to make clear the circumstances when Federal and State agencies may deploy drones for aerial surveillance has already raised significant concerns about the agency’s programs. Once again I thank you for the opportunity to testify today, and I will be pleased to answer your questions

Congress must enact comprehensive drone reform lacking nowStepanovich 12 (Amie Stepanovich, Amie Stepanovich is U.S. Policy Manager at Access. Amie is an expert in domestic surveillance, cybersecurity, and privacy law, July 19, 2012, “Using Unmanned Aeiraial Systems Within the Homeland: Security Game-Changer. Hearing Before the Subcomittee on Oversight, Investigations, and Management of the Committee on Homeland Security House of Representatives One Hundred Twelfth Congress Second Session” http://fas.org/irp/congress/2012_hr/uas-homeland.pdf)

IV. CONGRESS SHOULD ESTABLISH SAFEGUARDS RELATED TO THE USE OF DRONES There

are several strategies to provide meaningful privacy protections that address the increased use of drones in our domestic skies. First, Congress should pass targeted legislation, based on principles of transparency and accountability. A first step would be the consideration and passage of Congressman Scott’s bill to limit the use of drone surveillance in criminal investigations without a warrant. State and local governments have also

considered laws and regulations to further prevent abuses of drone technology.42 These proposals would serve as a good basis for Federal legislation. Drone legislation should include: • Use Limitations.—Prohibitions on general surveillance that limit drone surveillance to specific, enumerated circumstances, such as in the case of criminal surveillance subject to a warrant, a geographically-confined emergency, or for reasonable non-law enforcement use

where privacy will not be substantially affected; • Data Retention Limitations.—Prohibitions on retaining or sharing surveillance data collected by

drones, with emphasis on identifiable images of individuals; • Transparency.—Requiring notice of drone surveillance operations to the extent possible while allowing law enforcement to conduct effective investigations. In addition, requiring notice of all drone surveillance policies through the Administrative Procedure Act.

These three principles would help protect the privacy interests of individuals. In addition, the law should provide for accountability, including third-party audits and oversight for Federally-operated drones and a private right of action against private entities that violate

statutory privacy rights. Second, Congress should act to expressly require Federal agencies that choose to operate drones, such as DHS and its components, to implement regulations, subject to public notice and comment, that address the privacy implications of drone use. Recently, in EPIC v. DHS, the D.C. Circuit Court of Appeals ruled that the Department of Homeland Security violated the Administrative Procedure Act when it chose to deploy body scanners as the primary screening technique in U.S. airports without the opportunity for public comment.43 The Court observed that there was ‘‘no justification for having failed to conduct a notice-and-comment rulemaking.’’44 We believe that the public has a similar right to comment on new

surveillance techniques, such as unmanned aerial vehicles, undertaken by Federal agencies within the United States. Finally, Congress must clarify the circumstances under which the drones purchased by the CBP in pursuit of its mission may be deployed by other agencies for other purposes. The failure to make clear the circumstances when Federal and State agencies may deploy drones for aerial surveillance has already raised

significant concerns about the agency’s program.45 V. CONCLUSION The increased use of drones to conduct surveillance in the United States must be accompanied by increased privacy protections. We recognize that drone technology has the potential to be used in positive ways. For example, drones may be used to monitor for environmental abuse, prevent the spread of forest fires, and assist in the rescue of

individuals in dangerous situations.46 However, the current state of the law is insufficient to address the drone surveillance threat. EPIC supports legislation aimed at strengthening safeguards related to the use of drones as surveillance tools and allowing for redress for drone operators who fail to comply with the mandated standards of protection. We also support compliance with the Administrative Procedure Act for the deployment of drone technology and limitations for Federal agencies and other organizations that initially obtain a drone for one purpose and then wish to expand that purpose. Thank you for the opportunity to testify today. I will be pleased to answer your questions.

Congress must enact a warrant requirement on dronesKaminski 2013 (Margot Kaminski, Margot Kaminski is the executive director of the Information Society Project at Yale Law School, May 2013, “Drone Federalism: Civilian Drones and the Things They Carry” http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1007&context=clrcircuit)

This argument is conditioned on several important qualifications. First, Congress must legislatively close the trap door that is the third-party or Miller doctrine. The third-party doctrine allows law enforcement to avoid the warrant requirement by getting information from third parties that in turn observe the subject.47 If courts do not fix this loophole, Congress should require law enforcement to obtain a warrant before obtaining information gathered by private parties that it cannot otherwise obtain without a warrant. Otherwise the flexibility explored by states in regulating private drone use will also turn out to be a way for law enforcement to obtain information gathered by private parties. Second, state experimentation with private drone surveillance should not preclude federal consideration of broader data privacy regulations, even regulations governing private actors. The aggregation of stored information implicates a different set of both First Amendment and privacy concerns than the initial gathering of individual pieces of information.48 Thus arguing for state-by-state regulation of information-gathering that implicates First Amendment values does not preclude consideration of federal data privacy protection

along the lines of the European Union’s Data Protection Directive, which governs the way personal data is processed, moved, and stored.49 Third, this Essay does not intend to wrest safety or other basic aviation licensing matters from the Federal Aviation Administration. And the Federal Aviation Administration should use its licensing programs to solve perhaps the biggest puzzle of drone regulation: how to provide notice or at least transparency to those being observed so they can determine whether they have been subjected to a privacy violation. Unlike surveillance by camera phone or most forms of CCTV, drone surveillance will often provide no visible notice to the watched party if the drone is high up in the sky.50 As Representative Ed Markey proposed in a draft bill, the FAA could, as part of its licensing scheme, require that those using drones for surveillance submit a data collection statement indicating when, where, and for how long such surveillance will take place.51 The federal government should require such data collection statements to be easily searchable, and aid individuals in obtaining any footage or data gathered about them. Both of these provisions are included in the proposed Markey bill. Alternatively, or in addition to this scheme, the federal government could require drone radio frequency identification (“RFID”) “license plates” to track the location of drones at any given time.52 Tracking drones is essential to establishing whether a tort has occurred in any given state. Fourth, states should decriminalize the use of basic privacy-protective technologies. It may surprise many to learn that a large number of states have anti-mask laws that criminalize mask-wearing in public, except under certain circumstances.53 Such laws prevent individuals from choosing to avoid surveillance in public places, inhibiting individuals’ expressive choices about whether to remain anonymous. In a world of increasing surveillance, giving more agency to the watched will justify maintaining protection of the expressive freedom of the watchers.

Congress must restrict drone usage in some ways, in order to protect 4th amendment valuesBucci et al. 12 (Steven Bucci, Paul Rosenzweig, Charles Stimson, and James Carafano, Bucci is director of the Allison Center for Foreign Policy Studies at The Heritage Foundation, 9/20/12, “Drones in U.S. Airspace: Principles for Governance,” http://www.heritage.org/research/reports/2012/09/drones-in-us-airspace-principles-for-governance)

General Principles Any guidelines must ensure appropriate protections of the freedoms guaranteed to U.S. citizens under the Constitution. The general rule balancing security and freedom is to be found, in large part, in the structure of American constitutional government itself. The protections codified in the Bill of Rights are an additional firewall against any intrusions on liberty that would unravel the checks in the Constitution. The Fourth Amendment’s prohibition against unlawful search and seizure is the right most directly implicated by unbounded and unrestrained use of domestic drones. Now is the time to return to first principles of individual liberty in a free society and assess their interaction with technology and governance in an age of domestic drones. There are basic first principles that underlie any use of new technology and the existing constitutional limitations that might apply to drones. An assessment of these principles suggests that there are: Substantial liberty interests; Acceptable domestic uses of drone technology that should be permitted and in fact fostered, such as the use of drones to search for survivors after a disaster; and Prohibited uses of drone technology that raise significant questions of law and policy—such as the deployment of drones operated by the military within U.S. borders in a manner that violates existing rules (such as Posse Comitatus) on the use of military force domestically. Beyond these uses, the challenge for the Administration and Congress is to define strict, appropriate implementation policies and oversight structures that can protect individual liberties while allowing appropriate uses of domestic drones with appropriate oversight.

FAA cannot properly implement drone reform – a comprehensive framework by other governmental bodies is keyBucci et al. 12 (Steven Bucci, Paul Rosenzweig, Charles Stimson, and James Carafano, Bucci is director of the Allison Center for Foreign Policy Studies at The Heritage Foundation, 9/20/12, “Drones in U.S. Airspace: Principles for Governance,” http://www.heritage.org/research/reports/2012/09/drones-in-us-airspace-principles-for-governance)

As a practical matter, the FAA has expertise in and is the appropriate forum for considering safety and technical questions, but other governmental bodies have expertise in and are better suited to address privacy and civil liberties concerns. Given the potentially wide range of uses for drones in U.S. territory, resolving air-traffic safety and security issues alone is inadequate. Washington needs a more comprehensive and thoughtful framework.

Restrictions on drone tech should be implemented to promote democracatic and privacy idealsBucci et al. 12 (Steven Bucci, Paul Rosenzweig, Charles Stimson, and James Carafano, Bucci is director of the Allison Center for Foreign Policy Studies at The Heritage Foundation, 9/20/12, “Drones in U.S. Airspace: Principles for Governance,” http://www.heritage.org/research/reports/2012/09/drones-in-us-airspace-principles-for-governance)

Fundamentally, these are questions of law and policy. The issue is not whether the use of drones is technically feasible: Obviously, it is and will be increasingly so. Nor is it a question of legality: Most current uses are lawful, and most future uses are likely to be. Rather, the proper subject for discussion is the extent to which society wants to provide tools to the state that have beneficial uses and are also susceptible to abuse. This question is not a new one; it is one that has been a tension point within American society since the Founding. Americans want a government that fosters liberty and freedom and that provides security. Americans want a constrained government that is subject to checks and balances and one that has “energy in the executive” (to quote Hamilton) to achieve legitimate governmental objectives. As always, striking the proper balance is both difficult and essential. As a first step, several first principles should guide the analysis:[5] No fundamental liberty guaranteed by the Constitution can be breached or infringed upon. Any increased intrusion on American privacy interests must be justified through an understanding of the particular nature, significance, and severity of the threat addressed by the program. The less significant the threat, the less justified the intrusion. The full extent and nature of the intrusion worked by any new technology must be understood and appropriately limited. Not all intrusions are justified simply because they are effective. Strip searches at airports would certainly prevent people from boarding planes with weapons, but they would do so at too high a cost. Whatever the justification for the intrusion, if there are less intrusive means of achieving the same end at a reasonably comparable cost, the less intrusive means ought to be preferred. There is no reason to erode Americans’ privacy when equivalent results can be achieved without doing so. Any new system that is developed and implemented must be designed to be tolerable in the long term. The war against terrorism, uniquely, is one with no foreseeable end. Thus, excessive intrusions may not be justified as emergency measures that will lapse

upon the termination of hostilities. Policymakers must be restrained in their actions; Americans might have to live with their consequences for a long time. From these general principles one can derive certain other, more concrete conclusions regarding the development and construction of any new technology—principles that are directly relevant to the deployment of drones domestically: No new system should alter or contravene existing legal restrictions on the government’s ability to access data about private individuals. Any new system should mirror and implement existing legal limitations on domestic or foreign activity, depending on its sphere of operation. Similarly, no new system should alter or contravene existing operational system limitations. Development of new technology is not a basis for authorizing new government powers or new government capabilities. Any such expansion should be justified independently. No new system that materially affects citizens’ privacy should be developed without specific authorization by the American people’s representatives in Congress and without provisions for their oversight of the operation of the system. Finally, no new system should be implemented without the full panoply of protections against its abuse. As James Madison told the Virginia ratifying convention in 1788, “There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”[6]

Congress should curtail drone surveillance Rothfuss 14(Ian, George Mason University School of Law, J.D. Candidate, May 2015; Boston University, M.S., Business Administration and Management; North Carolina State University, B.S., Business Management., Spring 2014, “An Economic Perspective On The Privacy Implications Of Domestic Drone Surveillance”)Congress should enact rules to govern domestic drone use. One recommendation is that Congress should require

the Department of Transportation to conduct a Privacy Impact Assessment of the operation of drones domestically.'66 Pending legislation proposes amending the FAA Modernization and Reform Act of 2012 to address drone privacy concerns.'6 7 With the proper

focus on privacy concerns, drones may be deployed domestically while still protecting the privacy of American citizens. In addition, Congress should require a warrant for "extended surveillance of a particular target. '68 As discussed earlier, the Fourth

Amendment would not necessarily require a warrant in these situations. Even so, such a requirement extending warrant protections makes sense and will provide a valuable check against law enforcement abuse of the new technology. Congress should require authorization from an independent official for generalized surveillance that collects personally identifiable information such as facial features and license plate numbers. 69 This recommendation would apply to situations where a warrant was not required but personally identifiable information was still being gathered, such

as surveillance at a public event. This recommendation should be enacted as a safeguard of the public's privacy interests. To adequately protect privacy interests, Congress should direct that the independent official, vested with decisionmaking power on applications for general surveillance, be a neutral and detached magistrate who is completely separated from any law enforcement or intelligence agency. As discussed in the previous section, legislation should be crafted to maximize the social utility from the domestic use of drones. The legislation should be structured according to the three levels of scrutiny proposed by Song to ensure that the governmental interest in the surveillance outweighs the disutility or social cost that will result from the loss of privacy. 7 ° The neutral and detached magistrate discussed above could determine when a sufficient government interest exists to warrant allowing generalized drone surveillance.

Legislation must be enacted to curtail drone surveillance Rothfuss 14(Ian, George Mason University School of Law, J.D. Candidate, May 2015; Boston University, M.S., Business Administration and Management; North Carolina State University, B.S., Business Management., Spring 2014, “An Economic Perspective On The Privacy Implications Of Domestic Drone Surveillance”)

U.S. citizens want to be safe from terrorist attacks and other threats, but not at the expense of their privacy rights. Therefore, a delicate balance must be achieved between privacy and security interests. Drones represent a surveillance technology advancement

that threatens to dramatically alter the balance between these interests. As discussed in this comment, the current legal framework does not adequately protect privacy from the widespread surveillance that will likely result from the unrestricted domestic use of drones. Therefore, prompt legislative action is necessary to address the fundamental privacy challenges presented by the use of drones. Such legislation should allow for constructive use of drones within a framework that contains restrictions to protect individual privacy rights. While widespread general surveillance could make the nation safer from crime and terrorism, such extensive surveillance will ultimately be inefficient. The surveillance that could result from the domestic use of drones would detract from individual privacy and cause individuals to reduce productive activities and invest in countermeasures. Such "privacy disutility" will outweigh the societal benefits unless domestic drone surveillance is restricted. Therefore, [FOOTNOTE] 171 AM. CIVIL LIBERTIES UNION, supra note 153, at 15. 172 Geiger, supra note 16. 173

id. 174 id. 20141 JOURNAL OF LAW, ECONOMICS & POLICY [END FOOTNOTE] without legislative action we may soon live in a world where "every time we walk out of our front door we have to look up and wonder whether some invisible eye in the sky is monitoring us. ' 75

AT Squo Solves Drone regulation is failing and negative impacts have a high potential to be seenMichel 14(Arthur Holland, co-director of the Center for the Study of the Drone, August 6 2014, “The Drones Will Have Their Day”, http://www.usnews.com/opinion/articles/2014/08/06/the-drone-regulation-debate-needs-to-be-better)In 2012, when small drones, the kind that weigh just a few pounds and carry a small object (like a camera, or a burrito) became affordable, the idea of a drone-filled airspace began shifting from sci-fi fantasy to reality. But the passage toward integration was set to be turbulent. Drones were more commonly thought of as the weaponized, ghostlike military spy aircraft that lurked over Pakistan, Yemen and Somalia, killing enemy militants and, occasionally, civilians and children. While these drones have little in common with small domestic drones, the public was spooked. Groups like the American Civil Liberties Union raised alarms. Fearing for privacy and safety, lawmakers from Washington state to Virginia rushed to propose legislation to limit or ban drones, even very small ones. The Federal Aviation Administration stressed, sternly, that commercial drone use would be absolutely prohibited until 2015, when it would enact

comprehensive – and strict – safety regulations. The agency reminded the public that private drone users were subject to restrictions, too. Two years later, the drones are soaring, while the efforts to limit their use have stalled and the public debate has gone into a tailspin. In June, a company called Squadrone System started aKickstarter campaign to fund a small multi-rotor drone called the HEXO+, which the company described as “an intelligent drone that follows and films you autonomously,” perfect for making exciting action sports videos. Within a few hours, the campaign had raised more than three times its $50,000 target. When the campaign ended, the company had raised $1.3 million. That same week, a company called APlus Mobile made its own Kickstarter campaign. Instead of a drone, the company proposed a Personal Drone Detection System – essentially, an anti-drone radar. “Our intent is to keep your privacy safe from your neighbors and people you may not know who are flying small drones near your home or office,” it said. The campaign

only managed to raise $1,435 of its $8,500 goal. It’s clear: The drone is winning. In state legislatures, drone regulation is one of the few issues that has enjoyed bipartisan support. In 2013, according to the ACLU, 43 states debated 96 drone bills; however, all but eight of these bills died in session. This year, just four out of 36 states that considered drone legislation have enacted any

laws. This is not enough to keep pace with drone proliferation. And lawmakers in Washington aren’t jumping to regulate the drone. In fact, some have caught drone fever. Last month, Democratic Rep. Sean Patrick Maloney of New York hired a photographer who used a drone to capture (admittedly rather stunning) aerial views of the congressman’s wedding. Sen. Rand Paul, R-Ky., who filibustered

Congress for 13 hours in protest of government drone use, owns a toy drone. When he flew it on Fox News, the look on his face was childlike. Even the FAA has been toothless. Desperate to prevent the midair meeting of a drone and a manned aircraft, the agency has released a number of policy statements intended to limit unsafe drone use. These

statements include the ban on commercial use. But policy statements are not legally binding. They are recommendations, placeholders for the real, legally enforceable regulations that will come sometime after 2015. While private individuals and companies often respect federal agency policy statements, in the case of the FAA, droners, eager to get airborne, have openly flaunted them. The FAA has attempted to enforce these policy statements through cease-and-desist letters and, in one case, a $10,000 fine. But these actions have been repeatedly struck down in court. The

FAA’s attempts at enforcement have therefore only served to highlight that it has its hands tied. Meanwhile, the rules that actually are legal (like keeping away from airports) are easy to break and difficult to enforce.

AT Squo solves FAA FAA doesn’t solve privacy Scientific American ‘13(Scientific American, March 19 2013, “Domestic Drones” http://www.scientificamerican.com/article/spy-drones-come-us-we-must-protect-privacy/) Before the decade is out, there may be thousands more eyes in the sky. Unmanned aerial vehicles, commonly known as drones, are already a staple of modern warfare. Now they are set to take on a much larger role in the U.S. Congress has directed the Federal Aviation Administration to set rules by 2015 for how drones may be used in domestic airspace. These rules could open up the skies to unmanned vehicles of all types—from large surveillance drones used by the military to insect-size prototypes being developed in university laboratories. The technology promises to be immensely useful. Public safety agencies can use drones to survey wildfires, conduct search-and-rescue operations, or pursue heavily armed

suspects. Farmers will use them to survey their fields; energy companies will fly drones over critical machinery. Still, drones also pose an immense threat to privacy. The proliferation of small, inexpensive aerial vehicles with video downlinks will dramatically alter the cost-benefit ratio of surveillance. No longer will law-enforcement agencies need to consider the expense and risk of operating a helicopter when gathering evidence. Consequently, law-enforcement agencies will have ample opportunity and motivation to deploy drones on open-ended

sorties. It is not hard to imagine blanket campaigns that survey entire cities for backyard marijuana plants or even building code violations. Privacy advocates rightly worry that drones, equipped with high-resolution video cameras, infrared detectors and even f acial-recognition software, will let snoops into realms that have long been considered privat e . The privacy threat does not just come from law enforcement, either. Paparazzi and private detectives will find drones just as easy to use as the cops. Your neighbor is not allowed go into your yard without your permission—will he be able to keep a drone hovering just above it? Case law paints a hazy picture of how drones could be employed for surveillance. A 1989 Supreme Court decision ruled that police may use helicopters to peer into semiprivate areas—say, the backyard of a home—without first obtaining a warrant. Such speculative reconnaissance, however, has been naturally limited by the costs of helicopter operations. Will the same law apply to unmanned drones, which are not similarly constrained? A more recent case poses troubling questions about access to the most sacrosanct spaces. In 2001 the Supreme Court ruled that police could not use thermal-imaging technology to gather evidence about the goings-on hidden inside a residence without first obtaining a warrant. The court reasoned that governmental use of “a device that is not in general public use”—a thermal imager—constitutes a search under the Fourth Amendment and therefore requires a judge's approval. Yet if unmanned aerial vehicles become as prevalent as manufacturers hope,

one could argue that drones are exempt from that precedent. Already the faa has permitted a handful of law-enforcement agencies to operate drones on a short-term basis. The limited regulations accompanying those permits (which,

thankfully, preclude attaching any weapons to the drones) are insufficient to protect the privacy of citizens . Perhaps this should not be surprising. The faa is not in the business of privacy protection. Its primary concern is with the safety of domestic airspace. No federal agency, in fact, can be held accountable if drones are not used responsibly and in a way that respects the Fourth Amendment. As such,

Congress should proactively enact laws that confine domestic drones to reasonable, useful purposes. Several sensible ideas were proposed during the last session of Congress, including a bill that would have outlawed drone spying without a warrant and instituted important transparency and accountability measures for their use. But that bill failed to make it out of a subcommittee. The present Congress must be more active than its predecessor in heading off this clear and impending threat to personal privacy.

Schnier ‘13(Bruce, contributing writer for The Atlantic and the chief technology officer of the computer-security firm Co3 Systems, September 11 2013, “The NSA-Reform Paradox: Stop Domestic Spying, Get More Security” http://www.theatlantic.com/politics/archive/2013/09/the-nsa-reform-paradox-stop-domestic-spying-get-more-security/279537/Leaks from the whistleblower Edward Snowden have catapulted the NSA into newspaper headlines and demonstrated that it has become one of

the most powerful government agencies in the country. From the secret court rulings that allow it collect data on all Americans to its systematic subversion of the entire Internet as a surveillance platform, the NSA has amassed an enormous amount of power . There are two basic schools of thought about how this came to pass. The first focuses on the agency’s power. Like J. Edgar Hoover, NSA Director Keith Alexander has become so powerful as to be above the law. He is able to get away with what he does because neither political party -- and nowhere near enough individual lawmakers -- dare cross him. Longtime NSA watcher James Bamford recently quoted a CIA official: “We jokingly referred to him as Emperor Alexander -- with good cause, because whatever Keith wants, Keith gets.” Possibly the best evidence for this position is how well Alexander has weathered the Snowden leaks. The NSA’s most intimate secrets are front-page headlines, week after week. Morale at the agency is in shambles. Revelation after revelation has demonstrated that Alexander has exceeded his authority, deceived Congress, and possibly broken the law. Tens of thousands of additional top-secret documents are

still waiting to come. Alexander has admitted that he still doesn’t know what Snowden took with him and wouldn’t have known about the leak at all had Snowden not gone public. He has no idea who else might have stolen secrets before Snowden, or who such insiders might have provided them to. Alexander had no contingency plans in place to deal with this sort of security breach, and even now -- four months after Snowden fled the country -- still has no coherent response to all this. For an organization that prides itself on secrecy and security, this is what failure looks like. It is a testament to Alexander’s power that he still has a job. The second school of thought is that it’s the administrations’ fault -- not just the present one, but the most recent several. According to this theory, the NSA is simply doing its job. If there’s a problem with the NSA’s actions, it’s because the rules it’s operating under are bad. Like the military, the NSA is merely an instrument of national policy. Blaming the NSA for creating a surveillance state is comparable to blaming the U.S. military for the conduct of the Iraq war. Alexander is performing the mission given to him as best he can, under the rules he has been given, with the sort of zeal you’d expect from someone promoted into that position. And the NSA’s power predated his directorship. Former NSA Director Michael Hayden exemplifies this in a quote from late July: “Give me the box you will allow me to operate in. I’m going to play to the very edges of that box.” This doesn’t necessarily mean the administration is deliberately giving the NSA too big a box. More likely, it’s simply that the laws aren’t keeping pace with technology. Every year, technology gives us

possibilities that our laws simply don’t cover clearly. And whenever there’s a gray area, the NSA interprets whatever law there is to give them the most expansive authority . They simply run rings around the secret court that rules on these things. My guess is that while they have clearly broken the spirit of the law, it’ll be harder to demonstrate that they broke the letter of the law. In football terms, the first school of thought says the NSA is out of bounds. The second says the field is too big. I believe that both perspectives have

some truth to them, and that the real problem comes from their combination. Regardless of how we got here , the NSA can’t reform itself. Change cannot come from within; it has to come from above. It’s the job of government: of Congress, of the courts, and of the president. These are the people who have the ability to investigate how things became so bad, rein in the rogue agency, and establish new systems of transparency, oversight, and accountability . Any solution we devise will make the NSA less efficient at its eavesdropping job. That's a trade-off we should be willing to make, just as we accept reduced police efficiency caused by requiring warrants for searches and warning suspects that they have the right to an attorney before answering police questions. We do this because we realize that a too-powerful police force is itself a danger, and we need to balance our need for public safety with our aversion of a police state. The same reasoning needs to apply to the NSA. We want it to eavesdrop on our enemies, but it needs to do so in a way that doesn’t trample on the constitutional rights of Americans, or fundamentally jeopardize their privacy or security. This means that sometimes the NSA won’t get to eavesdrop, just as the protections we put in place to restrain police sometimes result in a criminal getting away. This is a trade-off we need to make willingly and openly, because overall we are safer that way. Once we do this, there needs to be a cultural change within the NSA. Like at the FBI and CIA after

past abuses, the NSA needs new leadership committed to changing its culture. And giving up power. Our society can handle the occasional terrorist act; we’re resilient, and -- if we decided to act that way -- indomitable . But a government agency that is above the law ... it’s hard to see how America and its freedoms can survive that.

Domestic drones inevitable but squo safegards are insufficient to solve privacy concerns – FAA insufficient to solve Koebler 2/17 JASON February 17, 2015 Staff writer for Mother Board, professional writer for U.S. News & World Report,

Washington Magazine, The Washington Post, Drones on the US border: Are they worth the price? http://www.csmonitor.com/USA/2014/0205/Drones-on-the-US-border-Are-they-worth-the-priceAfter more than five years of handwringing, missed deadlines, and court cases, the Federal Aviation Administration has finally provided a path forward for the legal use of drones in the United States.The news dropped Sunday morning, so there's a good chance you've already heard a bit about the new proposed regulations. Commercial drones must stay within line of sight of the operator, must fly during daylight

hours, must stay at speeds below 100 miles per hour and altitudes of less than 500 feet, and must not fly above people who are uninvolved with the flight. Overall, it's a major win for the commercial drone industry, especially considering that rules being floated and rumored over the last several months were much more strict—one report suggested that drone operators would have to be licensed private pilots in order to get their foot in the door, in fact. Drone pilots I know are over-the-moon that the FAA seems to have finally seen the light on this technology, especially after years of legal battles and threats that have come from the agency for businesses that have operated in a legal grey area. Here's what we can take away and reasonably infer from the FAA's document: What you're looking at is probably the final rule Drone pilots and the drone industry are pretty ecstatic with what the FAA has put out there. There are some sticking points: Experienced pilots want to fly over processions and people for photography purposes (a concert shot with drone footage, for instance). But, overall, from the industry side, people are happy with this. I wouldn't expect a lot of pushback or comments asking the FAA for even wider latitude to fly. I also wouldn't expect a ton of

pushback coming from those wanting to limit drones. There are privacy advocates who fear camera-wielding drones will prove intrusive, and want to keep them grounded, and they have a point. But right now, there's so much money and momentum pushing drones forward that it seems likely privacy will be tackled by some other entity or at a later date. The only other real opposition drones have had has come from crop dusting pilots, who argue that a drone-crop duster crash would be catastrophic. They're not wrong, but that argument comes from a fear of losing their jobs more than anything else, and the agricultural pilot lobby simply isn't a very strong voice. Delivery drones are not dead One of the biggest misconceptions going around right now is that Amazon's delivery drones are now DOA. It's true that delivery drones aren't going to be legal under this rule, but this is the first of many drone regulations that will eventually come out. The FAA wasn't ready to tackle

flying outside the line of sight or with drones that drop things, which seems pretty sensible. FAA administrator Michael Huerta has noted that the FAA will continue researching delivery drones. So, not yet, but to say that delivery drones are never going to happen is shortsighted. Many of the lawsuits against the FAA will probably go away Three separate groups—model aircraft pilots, drone business owners, and a group of universities— filed suit against the FAA last summer after the agency made it more difficult to fly drones legally. Brendan Schulman, the lawyer representing the firms, would not tell me more about ongoing litigation (understandably so). However, it seems like a safe bet that drone businesses will drop their suit, considering all they were really asking for was a way to fly legally. The Academy of Model Aeronautics was angry that model aircraft, which have never been regulated, were being lumped in with more stringent commercial drone rules. The FAA's

actual rule, however, lets model aircraft flyers continue as they always have. The AMA seemed pleased in an emailed press release: "The preliminary information released today indicates that the proposed regulation will treat the recreational use of small unmanned aircraft separately from that of commercial use," it said. University researchers are probably not pleased Schulman’s last group of FAA-suing clients, however, a group of drone-using universities, can’t be happy about the ruling. "Research and development" and "educational and

academic uses" are classified as commercial uses of drones subject to new regulations. Schulman tweeted that provision would be a "huge blow" to existing research programs. Universities are clients of his, so I would expect that lawsuit to move forward.The FAA has done everything slowly with drones. There will be a comment period of 60 days before the FAA actually votes on a final set of rules, and I wouldn't be surprised if the process somehow drags for months   before they're ultimately finalized. The FAA will also have to beef up its air traffic control staffing (it requires drone operators to call control towers before flying anywhere

remotely near an airport) and its drone licensing and testing sites. This process isn't over, not by a longshot. But now, finally, there appears to be light at the end of the tunnel.

AT 4th Ammendment

UAV’s don’t violate 4th ammendment Thompson 2013

(Richard, Legislative Attorney, April 3,2015, “Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses” http://www.pennyhill.com/jmsfileseller/docs/R42701.pdf0

Based on existing case law, it is reasonable to assume that surveillance of an individual while in his home—an area accorded the greatest Fourth Amendment protection—using technology not in general public use would be an unlawful search absent a search warrant. The Supreme Court in Kyllo was particularly concerned about law

enforcement’s use of powerful equipment to peer inside an individual’s home. Currently, UAVs carry high-megapixel cameras and thermal imaging, and will soon have the capacity to see through walls and ceilings.98 These technologies are not generally available to the public, and under current jurisprudence, their use by law enforcement would probably constitute a search covered by the Fourth Amendment. However, the use of low-powered cameras or other unsophisticated technology to view people and objects in plain view while in their home might not trigger Fourth Amendment protections. The rationale for this notion is that officers are not required to avert their eyes when they see illegal activity in plain view, especially when the subject of the search has taken no affirmative efforts to hide their activity from public view. Moving beyond the home, it is unclear whether circumstances exist in which the area immediately surrounding the home—for instance, a backyard, a swimming pool, a deck, or a porch—would receive similar protections as the interior of the home if surveilled by drones or other aerial vehicles.99 Although the

Supreme Court has recited on many occasions that a person located in a home’s curtilage is accorded similar privacy protections as when inside the home, the aerial surveillance cases arguably constitute an exception to this general principle. In the two aerial cases, Riley and Ciraolo, the area surveilled was within close proximity of the home, yet the police surveillance at altitudes of 400 and 1,000 feet were not considered a search. Based on the aerial surveillance cases, it may be reasonable to presume a warrant would not be required (nor, perhaps, any suspicion, for that matter) to conduct drone surveillance of most public places for a relatively short period of time. The Supreme Court remarked in Ciraolo that the “Fourth Amendment simply does not require the

police traveling in the public airways at [1,000 feet] to obtain a warrant to observe what is visible to the naked eye.”100 However, the rarity of drone flights may distinguish their use from surveillance by the piloted aircraft used in the three aerial cases decided by the Court. All three of these cases were premised on the fact that each aircraft was flying in navigable airspace, and that these flights were not “sufficiently rare” to provide a reasonable expectation of privacy in the area to be searched. To this point, Justice White remarked in Riley that “there is nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent’s claim that he

reasonably anticipated that his greenhouse would not be subject to observation from that altitude.”101 Presently, use of UAVs in U.S. airspace is considerably less common. The FAA has issued only approximately 300 licenses for drone use in U.S. airspace.102 The general public would

likely find it exceedingly unusual for a drone to fly over their homes taking surveillance photographs. This rarity might factor into a reviewing court’s determination of whether individuals have a legitimate expectation of privacy from various forms of drone surveillance while in a public place.103 The federal government’s authority to use unmanned

aircraft is undoubtedly at its maximum near U.S. borders. One of the federal government’s only affirmative duties is to protect citizens from external harm.104 This includes securing the borders. The Court has hesitated from interfering with the performance of this duty, and it would in all likelihood demonstrate the same deference when it comes to the use of UAVs. Moreover, the Supreme Court’s rulings in border cases have all involved active

searches—either a physical search of a vehicle or stopping and questioning a vehicle’s passenger. Surveillance by UAVs, on the other

hand, may be considered more passive and therefore may be even less likely to run afoul of Fourth Amendment requirements. Drone surveillance does not require any physical manipulation of a person or his things. UAVs also do not require the seizure of a person for any period of time (though drone surveillance may lead to law enforcement physically apprehending a person who is seen engaging in suspected illegal activity). However, the Court has shown some reticence about giving law enforcement carte blanche search power at the border. Roving vehicle patrols and indiscriminate searches in Almeida-Sanchez v. United States and United States v. Brignoni-Ponce were deemed unconstitutional.105 It is unclear whether this reticence would extend to drone surveillance along the border if it were to become significantly widespread.

A2 T

AT – Drones =/= Surveillance Drones are used for surveillanceACLU 4/12

(American Civil Liberties Union, Apr 12, 2015, “Domestic Drones,” https://www.aclu.org/issues/privacy-technology/surveillance-technologies/domestic-drones )

U.S. law enforcement is greatly expanding its use of surveillance drones, and private actors are also seeking to use the technology for personal and commercial use.

More ev Mitnick & Bussell 2/15

(Drew Mitnick, Jack Bussell – Access, Access is an international human rights organization, 11:02am | 15 February 2015, “Taming the skies: Obama memo looks at commercial drones, restricts government use,” https://www.accessnow.org/blog/2015/02/15/taming-the-skies-obama-memo-looks-at-commercial-drones-restricts-government)

Drones also increase the opportunities for governments to conduct first-hand surveillance of users’ electronic

communications by intercepting signals and information. Official documents demonstrate that government agencies are already exploring aerial platforms for surveillance technologies, like Stingray technology, which conducts bulk surveillance of user location information. Currently, the FBI believes it can use Stingrays without a warrant any time the device is deployed in public, a practice which would be limited by the Geolocational Privacy and Surveillance Act, which was recently re-introduced by Senator Wyden and Representative Chaffetz. Conversely, also this year, Representative Michael McCaul is pushing legislation that would increase the use of drones on the U.S. borders, potentially collecting a large amount of digital data. The potential for drones to violate individual rights supports the need for legislation and regulations for government uses of drones as well as commercial vehicles.

A2 CP

A2 Consult justice department Justice Department supports privacy frame and use is high AP 5/22

(Associated Press,  May. 22, 2015 6:37 PM EDT, “Justice Department issues policy on domestic drone use,” http://bigstory.ap.org/article/8041e46a7a3a4fb4bc85acb05598fecc/justice-department-issues-policy-domestic-drone-use )

The Justice Department is acknowledging that the FBI, DEA and other federal law enforcement agencies are likely to make increasing use of unmanned aerial drones in the United States. The department on Friday issued its first written guidelines for domestic drone use and emphasized the need to respect civil and constitutional rights. The unmanned aircraft already have been used in kidnapping, drug and fugitive cases, as well as search and rescue operations, the department said. They also can be operated relatively cheaply.

AT States CPState laws will be too restrictive – kills the industry Gruber 15

(Robert, litigation associate at Greenberg Traurig, LLP,

“COMMERCIAL DRONES AND PRIVACY: CAN WE TRUST STATES WITH “DRONE FEDERALISM”?” 21 RICH. J.L. & TECH. 14 (2015), http://jolt.richmond.edu/v21i4/article14.pdf)

It is possible that a pure federalism model would work well if—as is probably the case for less-controversial areas of the law—states cautiously tested the waters of restrictions on civil/commercial drones. Unfortunately, that does not appear to be the case here; they are diving straight in.220 The specter of drone warfare and robotic monitoring has wrought enough damage on drones’ image that, by the time the FAA fully integrates private UAS in the national airspace, it may be impossible in a significant number of states to operate one without risking civil or criminal liability.221 As mentioned earlier, as long as the third-party doctrine remains viable, the incentive for states to bring civil drone restrictions up to speed with moratoria on government surveillance will be great.222 [77] The states have also done little to demonstrate that they are concerned with the “complex space” between the First Amendment and privacy. The Texas Privacy Act, enacted in response to a drone’s discovery of environmental violations, arguably violates the First Amendment outright. The cattle industry has sponsored bills in several states forbidding the recording of farmland.223 Some states, by prohibiting flights over private property, appear to be straining to reach as much conduct as existing First Amendment precedent could possibly allow. [78] Moreover, the Supreme Court’s preference against issuing broad holdings when privacy and the First Amendment collide suggests that even some unconstitutional attempts are unlikely to be overturned in one fell swoop. Instead, courts might invalidate statutes on particular cases’ facts. The result could be that unconstitutional laws persist for some time, continuing to infringe on First Amendment rights, eroding rather than being overturned. Finally, of the three possible approaches, drone federalism would result in the greatest level of interstate variation and legal uncertainty. The aviation industry benefited from a consistent federal approach in 1926, and would again today, to the extent possible.

AT wait and see cp Too late and cp is unenforceable – federal regulations are key Gruber 15

(Robert, litigation associate at Greenberg Traurig, LLP,

“COMMERCIAL DRONES AND PRIVACY: CAN WE TRUST STATES WITH “DRONE FEDERALISM”?” 21 RICH. J.L. & TECH. 14 (2015), http://jolt.richmond.edu/v21i4/article14.pdf)

Perhaps the most conclusive argument against the “wait and see” option is simply that the ship may have already sailed. At least forty-three states have proposed drone bills, and laws are on the books in at least twenty of them. There might still be hope that states will be more open to commercial applications, as only a quarter or so of states have specifically addressed private use.210 It seems likely, however, that more states will take up that cause as it becomes more pressing.211 For example, many states that addressed only public surveillance forbade the government from storing information collected inadvertently, or from using in court information about anyone other than the subject of the warrant.212 Presumably those states will want to consider drafting similar restrictions for information collected by third-party UAVs. [72] Another potential problem with such an approach is that, in all likelihood, it will be very difficult to enforce existing privacy laws against improper actors without at least some drone-specific rules on the books. UAVs can be light, quiet, and virtually unnoticeable. They can observe from angles one normally would not expect, and see over walls and on rooftops. People who are illegally observed by UAS—for example, in violation of a “Peeping Tom” statute—may never know their rights have been violated, unless government imposes some restrictions.213

AT States States insufficient to solve the aff – law enforcement circumvents Schlag 13

(Chris, J.D. candidate, University of Pittsburgh School of Law, May 2014; B.S., Environmental Health,

Colorado State University; M.S. Occupational Health, Safety and Environmental Management, Columbia Southern University, Spring 2013, “The New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights” Journal of Technology Law & Policy Volume XIII – Spring 2013)

The argument has been made that drones are no more invasive to privacy than the standard helicopter surveillance.134 However, a survey of proposed legislation clearly suggests that privacy during drone surveillance is actually a major concern. In a majority of proposed state bills, states want to implement, at a minimum, a probable cause requirement before law enforcement can obtain a warrant for the use of drones to collect evidence against an individual.135 Some states’ proposed legislation would ban weaponization of drones owned and operated within the state;136 other states have focused their bills on limiting aerial surveillance of groups such as farmers and ranchers, or for specific types of crimes, such as felonies.137 Additionally, two states, Massachusetts and North Dakota, have explicitly limited drone surveillance when that surveillance implicates an individual’s First Amendment protected activities.138 State proposed legislation is a step in the right direction but is still largely insufficient in protecting all of an individual’s privacy interests. Currently, none of the proposed state legislation fully addresses privacy nor provides sufficient privacy checks on third party use of drones for surveillance purposes. Under many of the proposed bills, drones can still be used by law enforcement to obtain information available in “plain view” or open space without a warrant, regardless of any existing individual expectation of privacy. Additionally, privately owned drones used for security and/or scientific purposes by third parties are not even discussed under the proposed bills.

Federal reform key and perm solvesKaminski 2013 (Margot Kaminski, Margot Kaminski is the executive director of the Information Society Project at Yale Law School, May 2013, “Drone Federalism: Civilian Drones and the Things They Carry” http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1007&context=clrcircuit)

A federal, or mixed state and federal, approach to law enforcement drone use makes perfect sense. A federal law governing law enforcement drone use would follow in the well-trod—albeit, outdated—footsteps of the Electronic Communications Privacy Act (ECPA).44 Like ECPA, federal legislation on law enforcement drone use could establish a statutory core to be shared by the states, or a statutory floor, permitting state deviation towards more protection. Additionally, because ECPA already establishes a familiar framework for warrants and court orders governing law enforcement surveillance, a federal law enforcement drone statute need not wait on extensive state experimentation. The updates need not be drone-specific, and could cover location tracking, video surveillance, or use of biometric identification, or other new technologies, if these are the concerns raised by drone surveillance.

Over-restrictive patchwork state regulations destroy drone competitiveness – causes the market to shift overseas – now is key

Gruber 15

(Robert, litigation associate at Greenberg Traurig, LLP,

“COMMERCIAL DRONES AND PRIVACY: CAN WE TRUST STATES WITH “DRONE FEDERALISM”?” 21 RICH. J.L. & TECH. 14 (2015), http://jolt.richmond.edu/v21i4/article14.pdf)

At this stage, it is impossible to accurately predict the scope of the future UAS industry. Its potential benefits are vast and varied: beyond mere job creation, drones will contribute to efficiency in various industries and aspects of society. This is particularly true in the commercial sphere, where competition and innovation can drive progress towards functions far removed from the individual surveillance people fear. UAS have already proven useful in functions from crop monitoring9 to gathering atmospheric data.10 Domino’s Pizza made headlines when it announced the development of delivery UAS systems, as have other companies—and while some skeptics dismissed the press releases as “publicity stunts,”11 it is not too difficult to imagine a future in which packages appear on our doorstep out of the sky.12 Recently, Facebook announced a plan that epitomizes the benevolent possibilities of commercial UAS.13 It haspurchased the U.K.-based company Ascenta, which manufactures solar- powered aircraft that can stay aloft at high altitudes for years at a time. Facebook’s goal? Providing Internet access in areas where traditional connections are impractical or impossible.14 Even though commercial UAS flight is still largely prohibited in the United States, the battle over drone regulation has already begun, fixated largely on imagined harms to people’s privacy.15 And the privacy advocates are winning: more than twenty states have passed laws restricting UAS operations.16 Many of these address law enforcement surveillance, but an increasing number of states are proposing—and enacting—restrictions on private and commercial aircraft. For example, a bill proposed and enrolled in Texas makes it a misdemeanor to collect an image of a person’s land without consent.17 Other states are considering similar legislation.18 One town in Colorado must have gotten Napolitano’s memo—it considered issuing “drone hunting licenses” that would authorize its citizens to shoot any unpiloted aircraft.19 [5] This sort of legislation is both premature and problematic, particularly with respect to the kind of drones that will be used for commercial or civil purposes (as opposed to law enforcement purposes). It is premature because legislators cannot foresee—and therefore cannot balance—all of the potential benefits and harms of commercial drone use. Many of the privacy interests purportedly advanced by restrictive legislation are already protected by other areas of the law.20 It is problematic because inconsistent and overly-restrictive regulations (1) potentially violate the First Amendment right to gather information and (2) threaten to chill industry growth.21 The harms such legislation causes are analogous, in a sense, to those that would have arisen if states had created a patchwork of Internet privacy laws several years before the development of the World Wide Web.22 Right now, the United States leads the pack in UAS technology. If the current legislative pattern continues, the U.S. might very well drive a market with incredible potential overseas, to more open-minded nations.23 [6] Is restrictive legislation nevertheless justified, as a means of vindicating legitimate privacy interests?24 Perhaps not, particularly where commercial UAS use is concerned. There are few cognizable circumstances in which using drones to monitor individual people will be profitable for non-government actors and entities.25 First, a primary advantage of unmanned aircraft is that they can go swiftly and easily where people cannot. UAS could be used profitably to survey mines, monitor power lines in remote areas, collect traffic-flow information, spray and monitor crops, and so forth. Some predict that eighty-percent of commercial drones will be used for agricultural purposes 26 —so the majority will seldom even accidentally interfere with

individual privacy interests. As one person put it, “corn doesn’t mind if you watch it.”27 Second, even if a particular commercial drone’s images could be processed and linked to individuals’ identities, what would justify the cost of such directed monitoring? Demographic information may be valuable, but our phones and Internet activity paint a cheaper and more accurate picture of consumer activities—where individuals go, where they shop, and what they buy. [7] The global market for UAS is growing fast.28 At the moment, the best available UAS technology belongs to the United States and Israel.29 Developed for military purposes, this technology nevertheless has massive export potential for civil and commercial uses. However, the United States’ monopoly on UAS technology may already be eroding. In 2013 Israel surpassed the U.S. as the chief exporter of UAS technology—although Israel remains second to the U.S. in production.30 What accounts for this discrepancy? A regulatory barrier: the companies that develop our military drones are restricted from marketing their technology elsewhere.31 China and other countries are now entering the ring.32 By competing in the global market, the U.S. can realize all the benefits of a multi-billion dollar industry once the FAA opens up the national airspace33—which it is poised to begin doing soon— but only if the U.S. avoids establishing a draconian regulatory framework for commercial UAS.

AT Executive Comission CP Destroys separation of powers Kaag 15

(John, associate professor of philosophy at the University of Massachusetts, March 9, 2015, “Why domestic drones stir more debate than ones used in warfighting abroad” http://www.csmonitor.com/World/Passcode/Passcode-Voices/2015/0309/Why-domestic-drones-stir-more-debate-than-ones-used-in-warfighting-abroad)

Sarah Kreps and I have argued that one of the more disturbing aspects of the FISA courts are their recent expansion of the “special needs” doctrine, which allows the government to carry out surveillance without detailed warrants in order to address an “overriding public danger.” We are concerned that this sort of governance, when applied to the issue of drones, might provide strategists and policy makers with a type of

carte blanche over the targeted killing program. The alternative proposed by the Obama administration – what the

President called “an independent oversight board in the executive branch” – doesn’t make us feel much better. It does not address the question of checks and balances that has prompted calls for judicial oversight. Selinger: What do you mean by “checks and balances?” Kaag: The call for transparency in the targeted killing program was amplified early in 2013 around the confirmation hearings of John Brennan as the director of the CIA. At this time, there was a call for the Obama administration to release secret legal memoranda concerning the targeting of American citizens on foreign soil. Some of these documents were released to Congress in the lead up to the Brennan confirmation. This is the sort of information exchange at the heart of “checks and balances.” And this exchange shouldn’t simply be used in the deal making of a confirmation hearing, but rather should slowly and carefully become the norm in our age of drone warfare . Obviously, Congress is regularly briefed about the drone program, but the Brennan hearing highlighted that there is a long way to

go for sufficient oversight. This is what would happen in an ideal word: Without making significant compromises to national security, we, the people, could have an informed debate not only about the status of American terror suspects abroad, but also about the deeper political and military rationale for targeting foreign nationals in accord with international law. What exactly is the risk that these targets pose to US national security? That’s a question Americans need to ask and answer in a sober and detailed way.

AT FISA CP Doesn’t solve the aff – FISA court’s special needs doctrine allows for unlimited surveilliance Kaag 15

(John, associate professor of philosophy at the University of Massachusetts, March 9, 2015, “Why domestic drones stir more debate than ones used in warfighting abroad” http://www.csmonitor.com/World/Passcode/Passcode-Voices/2015/0309/Why-domestic-drones-stir-more-debate-than-ones-used-in-warfighting-abroad)

Kaag: The FISA courts are very weird. Our legal system is based on an adversarial model. In other words, courts

are places to dispute charges and impartial parties – a judge and jury – make a decision about the case. The FISA courts aren’t like this. At all. FISA requests are not disputed. Only a very, very small percentage of FISA requests have been denied over the courts’ 30 year history. Most are approved as a matter of course . Sarah Kreps and I have

argued that one of the more disturbing aspects of the FISA courts are their recent expansion of the “special needs” doctrine, which allows the government to carry out surveillance without detailed warrants in order to address an “overriding public danger.” We are concerned that this sort of governance, when applied to the issue of drones, might provide strategists and policy makers with a type of carte blanche over the targeted killing program. The alternative proposed by the Obama administration – what the President called “an independent oversight board in the executive branch” – doesn’t make us feel much better. It does not address the question of checks and balances that has prompted calls for judicial oversight.

AT States CP Perm sovles best – federal baseline is a prerequisite to effective state policy Schlag 13

(Chris, J.D. candidate, University of Pittsburgh School of Law, May 2014; B.S., Environmental Health,

Colorado State University; M.S. Occupational Health, Safety and Environmental Management, Columbia Southern University, Spring 2013, “The New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights” Journal of Technology Law & Policy Volume XIII – Spring 2013)

Drone technology is an exciting and quickly evolving technology that has created a modern tool capable of a variety of positive applications. Like many other technologies developed in the twentieth and twenty-first centuries, drones have many positives and many negatives associated with their use. Therefore, proactive steps should be taken by both the Legislature and the Judiciary to ensure individual privacy rights are not eroded with the incorporation of this new technology into our daily lives. The best way to ensure that our reasonable expectation of privacy is maintained is for Congress to enact a baseline consumer protection law that manages both governmental and private party use of drones in national airspace. Following the development of a baseline federal law, states could further protect individual rights by adding state specific legislation to the baseline protection.

AT Study cp Doesn’t solve the aff -CP = the squo

-lack of resources means cant solve individual privacy or rights

Schlag 13

(Chris, J.D. candidate, University of Pittsburgh School of Law, May 2014; B.S., Environmental Health,

Colorado State University; M.S. Occupational Health, Safety and Environmental Management, Columbia Southern University, Spring 2013, “The New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights” Journal of Technology Law & Policy Volume XIII – Spring 2013)

A final proposal has been to allow for studies by DOT and FAA, as part of the initiative of the FAA Modernization and Reform Act of 2012, to assess the privacy impact from the integration of drones into national airspace.143 While FAA and DOT together have already initiated multiple studies on privacy impacts, resulting in the FAA

delaying the naming of several drone-testing sites,144 studies do not protect against current privacy invasions and cannot replace proactive controls in privacy protection. Furthermore, DOT and FAA are administrative agencies tasked with the protection and safety of vehicles in our national airspace. These agencies are not equipped with the necessary expertise to protect individual rights or individual privacy. While there is a definite benefit in the DOT and FAA assessing drones’ impact on privacy during the incorporation of additional drones into national airspace, this benefit should not deter the enactment of additional controls that would more assertively protect individual privacy rights.

Congress – AT States CP

AT Executive CP CP destroys SOP – congress is key Williams 2014

(Ryan Williams, Assoc. Professor Western State College of Law, August 2014, “The Road Most Travel: Is the Executive’s Growing Preeminence Making America More Like Authoritarian Regimes It Fights So Hard Against? http://works.bepress.com/cgi/viewcontent.cgi?article=1006&context=ryan_williams)

Defining imminence in a way that eliminates the immediacy requirement is especially troubling when one recalls the imminence requirement for standing to challenge the NSA surveillance program. As noted earlier,

the plaintiffs in Clapper were not allowed to challenge the NSA surveillance program because they failed to “present ssome case for imminent

harm or a ‘certainly impending’ injury.”213 Thus, when Americans try to challenge Executive power, imminence means imminence, as they must have a “certainly impending injury” in order to have standing.214 However, when the Executive wants to kill Americans, imminence does not mean imminence, and as long as some harm may happen sometime in the future—that is sufficient.215 This double standard is problematic, especially if one wants to maintain any type of democracy and separation of powers in America.

Whenever there are different rules for different people, where the people in control of the military give different definitions of the exact same word, that nation no longer resembles a land of the people. Congress is supposed to make the laws and the Judiciary defines them, not the Executive doing all of the above sua sponte.

AT Warrants PIC No link to the NB

Yang 14

(Y. Douglas, J.D., Boston University School of Law, “Big Brother's Grown Wings: The Domestic Proliferation of Drone Surveillance and the Law's Response” 23 B.U. Pub. Int. L.J. 343 (2014))

Rule I embodies the desire of both federal and state legislatures to exclude certain situations from the burden of a warrant requirement.228 Common exam- ples of non-law enforcement operations include, but are not limited to, land surveying,229 weather and climate observation and scientific research,230 wild- life management and protection, 23 1 and search and rescue missions. 232 In addi- tion to Rule l's exemption of non-law

enforcement uses of drones, Rule I also exempts situations where a high risk of terrorist attack or imminent danger to life or property exists. This specific provision finds its inspiration in Virginia's warrant exception that allows drone use for

responses to Amber Alerts,233 Se- nior Alerts,234 and search-and-rescue missions."235 While the Fourth Amend- ment covers all government intrusions of privacy, government activity that does not involve criminal investigation tends to involve "a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime."236 Moreover, drones can be a potent tool to assist in searching for miss- ing persons and in police emergencies, much in the same way that police heli- copters and aircraft currently provide aerial support, albeit at a much higher cost and with

less flexibility.237 Rule I reflects a desire by federal and state legislative proposals to exempt exigent circumstances from restrictions on drone use.238 Thus, where a law enforcement agency believes that a particular area, event, or situation poses a high risk of attack by terrorists; or that there is an imminent and articulable threat to a specific person's life or property, sub- stantial legal obstacles should not hamper that agency. Rule l's first paragraph is a compromise measure that allows the government to promptly respond to urgent situations, while ensuring that the government, and particularly law enforcement agencies, adhere to the privacy protections of the Rule by demonstrating that probable cause of a high risk of terrorist attack existed or that an imminent danger to life or property existed at the time and general location of the drone's operation.

_____

No link – exceptions are predictable and solve the link Yang 14

(Y. Douglas, J.D., Boston University School of Law, “Big Brother's Grown Wings: The Domestic Proliferation of Drone Surveillance and the Law's Response” 23 B.U. Pub. Int. L.J. 343 (2014))

Congress has moved slowly to react to the rise of domestic drone use. Rather than address the relevant privacy concerns surrounding drones, Congress has instead focused on rapidly integrating drones into domestic airspace.'"9 Nonetheless, individual members of Congress have raised their concerns with do- mestic drone use, and some have gone so far as to introduce legislation to restrict the

government's ability to use drones as surveillance platforms.1 60 Senator Rand Paul's proposed bill, the Preserving Freedom from Unwarrant-

ed Surveillance Act of 2013, would require a warrant for most situations in which drones are used "to gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute or regulation."' 61Excep- tions to the blanket warrant requirement would include border patrol missions,

prevention of terrorist attacks, and circumstances in which police have reasona- ble suspicion that an imminent danger to life is at hand and are thus required to take immediate action.

A2 K

Framework Debates about drones are important – public understanding is low – debates are key VOGEL 15

(Nate Vogel, Legislative Counsel at the New York Civil Liberties Union , February 11, 2015 “Drones at Home: The Debate Over Unmanned Aircraft in State Legislature” http://www.albanygovernmentlawreview.org/Articles/Vol08_1/8.1.204-N.%20Vogel.pdf)

Privacy advocates are apparently generally unsuccessful at convincing lawmakers to limit the surveillance infrastructure. The ACLU found that in 2013, “[o]nly five states have laws on the books governing license plate readers.”23 There are many factors that may limit the success of privacy advocates. Public debate about whether surveillance is appropriate or whether there should be new limits to protect privacy tends to only happen occasionally, and only after the infrastructure has been in place for some time.24 Sometimes this happens because the public does not even learn of a new surveillance technique until it is a wellestablished practice .25 Even when there is evidence that a particular kind of surveillance is happening, decision makers— judges, for example—may not wish to take action unless there are injuries in fact.26 This, notwithstanding the fact that the history of surveillance techniques, from writs of assistance to electronic

wiretaps,27 provides strong evidence that surveillance tools are highly likely to be abused without clear limits and consistent oversight. With every new surveillance technology, there are invariably economic arguments supporting governments’ and companies’ use of the technology. Drones and ALPRs create revenue and jobs, according to supporters.28 The congressional committee that reported major 2011 federal legislation on unmanned aircraft declared that the unmanned aircraft industry would create “23,000 high-paying jobs in the United States.”29 A resolution from Louisiana, SCR 124, was even more optimistic, estimating that “once the Federal Aviation Administration establishes guidelines for commercial use, the drone industry expects more

than one hundred thousand jobs to be created and nearly half a billion in tax revenue to be generated by 2025[.]”30 There are also often industry groups that emerge to lobby for governments to use the technology technologies make “law abiding citizens” safer and only threaten the “bad guys.”32 Every privacy advocate has heard someone— and probably many people—say, “I don’t really care what they’re watching. I’ve got nothing to hide.” Many authors have identified flaws with this perspective33 so I will not repeat them here, despite the many critiques this argument endures.

Drones are key to civil government and commercial sectorREHFUSS 15

(Abigail Rehfuss, previous Editor for Albany Government Law Review/Assistant Albany District Attorney , February 6, 2015 “The Domestic Use of Drones and the Fourth Amendement” http://www.albanygovernmentlawreview.org/Articles/Vol08_1/8.1.313-Rehfuss.pdf)

In addition to their resourcefulness along the border, UAVs have proven to be similarly advantageous in a variety of other peaceful contexts. For example, UAVs have civil government applications that include emergency response, law enforcement surveillance, search and rescue, forest fire monitoring, communications relay, flood mapping, high altitude imaging, traffic monitoring, humanitarian aid, land use mapping, and chemical and petroleum spill monitoring. On the scientific front, UAV applications include natural hazards research and monitoring, environmental monitoring and mapping, in-situ atmospheric monitoring, hyperspectral imaging, sea ice flow observations, plume dispersion and tracking, soil moisture imaging, and aerosol source determinations. In the commercial sector, UAVs are used in areas such as crop monitoring, communications relay, and utility inspection

A2 DA

Mexico DA – Drones suck Drones fail at the border – DHS audit Harrington 1/6

Elizabeth, January 1, 2015, Audit: DHS Drone Program Ineffective at Border Security, http://freebeacon.com/issues/audit-dhs-drone-program-ineffective-at-border-security/ Elizabeth Harrington is a staff writer for the Washington Free Beacon. Elizabeth graduated from Temple University in 2010. Prior to joining the Free Beacon, she worked as a staff writer for CNSNews.com.

Custom and Border Protection’s (CBP) drone program is ineffective and surveys less than 200 miles of the

southwest border, according to an audit by the Department of Homeland Security’s (DHS) Office of Inspector General.The program operates 10 Predator B drones at a cost of more than $12,000 for every hour a drone spends in the air, funding which could be put to better use elsewhere, according to the OIG.The program costs $10,000 more per flight hour than what DHS claims, according to the OIG. “We estimate that, in fiscal year 2013, it cost at least $62.5 million to operate the program, or about $12,255 per [flight] hour,” the audit said. “The Office of Air and Marine’s calculation of $2,468 per flight hour does not include operating costs, such as the costs of pilots,

equipment, and overhead.” “Although CBP’s Unmanned Aircraft System program contributes to border security, after 8 years, CBP cannot prove that the program is effective because it has not developed performance measures,” the audit , released on Christmas Eve, said. “The program has also not achieved the expected results.”The OIG found that the Unmanned Aircraft System program (UAS) has not met flight hour goals, and that DHS lacks evidence that drones have contributed to more border apprehensions.[U]nless CBP fully discloses all operating costs, Congress and the public are unaware of all the resources committed to the Unmanned Aircraft System program,” they said. “As a result, CBP 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.”Drones have flown along the border 80 percent less than what CBP originally imagined of “four 16 hour unmanned aircraft patrols every day of the year, or 23,296 total flight hours.” In reality, drones were only in the air for 5,102 flight hours in 2013. The CBP blamed the lack of drone flights on budget constraints. The government has already spent $360 million on the program since 2005, and DHS hopes to add 14 more drones at a cost of $443 million. However, the OIG said the agency has not proved the program deserves to be expanded. “Given the cost of the Unmanned Aircraft System program and its unproven effectiveness, CBP should reconsider its plan to expand the program,” the audit said. “The $443 million that CBP plans to spend on program expansion could be put to better use by investing in alternatives, such as manned aircraft and ground surveillance assets.” The drones, which can fly for 20 hours at a speed of 276 miles per hour, are operating on a small section of the 1,993-mile southwest border, contrary to the government’s claims. According to the audit, drones only focused on 100 miles of the Arizona border and 70 miles of the Texas border. DHS claimed in their annual report ending in 2014 that they had “expanded unmanned aircraft system coverage to the entire Southwest Border.” However, CBP drones are sometimes in use elsewhere, including Cocoa Beach, Fla., Grand Forks, N.D., and Sierra Vista, Ariz. Drones were also responsible for only 1.8 percent of apprehensions in the Tucson, Ariz. region, and a mere 0.7 percent in the Rio Grande

Valley.“According to border patrol agents and intelligence personnel in Arizona, USBP probably would have detected the people using ground-based assets, without the assistance of unmanned aircraft,” the audit said.

Terrorism DA – Link turn Unregulated drones risks terror attacks VILLASENIOR 14

(John, Nonresident Senior Fellow , The Brookings Institution Professor, Electrical Engineering, April 4, 2012, UCLA, Panel: “THE COMING PROLIFERATIO N OF DOMESTIC DRONES: WHAT WILL BE THE IMPACT ON PRIVAC Y, SAFETY AND NATIONAL SECURITY?” http://www.brookings.edu/~/media/events/2012/4/04-domestic-drones/20120404_domestic_drones.pdf)

The last area is national security. It would be naive to deny that sufficiently large unmanned aircraft don't create some new risks. It would make no sense at all for a terrorist to attack a shopping center or an office building using a drone. As we saw in

Oklahoma City in 1995, a car or truc k filled with explosives would be far easier and more deadly. However, sensitive governm ent and military facilities are a different story because of their access restrictions. At these facilitie s drones could be far harder to detect and stop than a car, truck or small passenger-bearing plant . An unclassified 2005 report

issued by the federally funded Institute for Defense A nalyses explicitly recognized these types of concerns. That report stat ed, and I'm

quoting here, "A small team could launch a UAV from hiding with a relatively small launch footprint and make their escape before impact." The report also stated that, "There would be little danger of detection and transportation, launch or escape." And that with a precision-guided UAV there is a "high probability of succes sful execution."

No link U No link uniqueness – debates about drones and privacy high now HAMILTON SPECTATOR 13 (Hamilton Spectator , (Metroland News) June 20, 2013 “FBI uses drones in domestic surveillance: Mueller” Bloomberg Ebscoe http://web.b.ebscohost.com/ehost/detail/detail?sid=895808dc-136e-4fac-8323-da303f4367f8%40sessionmgr110&vid=0&hid=115&bdata=JkF1dGhUeXBlPWlwLHVybCxnZW8sY3BpZCx1aWQmY3VzdGlkPWthbnNhcyZnZW9jdXN0aWQ9a2Fuc2FzJnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=n5h&AN=Q4KHSON2013062024664145

The FBI uses drones in domestic surveillance operations in a "very, very minimal way," director Robert Mueller said. Mueller, in Senate testimony Wednesday, acknowledged for the first time that the Federal Bureau of Investigation uses "very few" drones in a limited capacity for surveillance. "It's very seldom used and generally used in a particular incident when you need the capability," Mueller said when asked about the bureau's use of pilotless aircraft with surveillance capabilities. "It is very narrowly focused on particularized cases and

particularized needs." Mueller's remarks about the FBI's use of drones - and the regular use of the vehicles by other law enforcement agencies - come as lawmakers and civil liberties groups are raising concerns about the reach of the government in the wake of the disclosure of two highly classified National Security Agency surveillance programs. Leaks by former intelligence contractor Edward Snowden to the Washington

Post and Britain's Guardian newspaper unveiled surveillance programs that sweeps up telephone call data from millions of U.S. citizens as well as Internet traffic that the Obama administration says involves foreigners based outside the U.S. suspected of plotting terrorist attacks. The revelations about the surveillance programs have reignited a political debate that has repeatedly flared since the Sept. 11, 2001, attacks on the U.S. about the

balance between civil liberties and protection from terrorism. Lawmakers and civil liberties groups have raised concerns about the impact on privacy of drones used by federal law enforcement agencies. The Homeland Security Department regularly deploys drones to oversee the southern border. Mueller said the FBI is in "the initial stages" of formulating privacy guidelines related to its drone use.

N/U – Obama XO means he’s already received backlash Whitlock 2014 (Craig, covers pentagon and national security- Washington Post, 26 September 2014, “White House Plans to Require Federal Federal Agencies to provide details about drones” https://www.washingtonpost.com/world/national-security/white-house-plans-to-require-federal-agencies-to-provide-details-about-drones)

The White House is preparing a directive that would require federal agencies to publicly disclose for the first time where they fly drones in the United States and what they do with the torrents of data collected from aerial surveillance. The presidential executive order would force the Pentagon, the Justice Department, the Department of Homeland Security and other agencies to reveal more details about the size and surveillance capabilities of their growing drone fleets — information that until now has been largely kept under wraps. The mandate would apply only to federal drone flights in U.S. airspace. Overseas military and intelligence operations would not be covered. President Obama has yet to sign the executive order, but officials said that drafts have been distributed to federal agencies and that the process is in its final stages. “An interagency review of the issue is underway,” said Ned Price, a White House spokesman. He declined to comment further. Privacy advocates said the measure was long overdue. Little is known about the scope of the federal government’s domestic drone operations and surveillance policies. Much of what has emerged was obtained under court order as a result of public-records lawsuits. “We’re undergoing a quiet revolution in aerial surveillance,” said Chris Calabrese, legislative

counsel for the American Civil Liberties Union. “But we haven’t had all in one place a clear picture of how this technology is being used. Nor is

it clear that the agencies themselves know how it is being used.” Most affected by the executive order would be the Pentagon, which conducts drone training missions in most states, and Homeland Security , which flies surveillance drones along the nation’s borders round-the-clock. It would also cover other agencies with little-known drone programs, including NASA, the Interior Department and the Commerce Department. Military and law enforcement agencies would not have to reveal sensitive operations. But they would have to

post basic information about their privacy safeguards for the vast amount of full-motion video and other imagery collected by drones. Until now, the armed forces and federal law enforcement agencies have been reflexively secretive about drone flights and even less forthcoming about how often they use the aircraft to conduct domestic surveillance. Security officials are generally reluctant to disclose operational methods and techniques. But drones are in a special category of sensitivity, given the top-secret role they’ve long played in CIA and military counterterrorism missions. There’s also evidence that federal agencies simply have been unable to develop internal guidelines and policies quickly enough to keep up with rapid advances in drone technology. “Federal use of drones has gone way up, but it’s hard to document how much,” said Jennifer Lynch, a lawyer with the Electronic Frontier Foundation, a San Francisco-based group that has sued the Federal

Aviation Administration for records on government drone operations. “It’s been incredibly difficult.” Even Congress has struggled to uncover the extent to which the federal government uses drones as a surveillance tool in U.S. airspace. In March 2013, lawmakers directed the Defense Department to produce a report, within 90 days, describing its policies for sharing drone surveillance imagery with law enforcement agencies. Eighteen months later, the Pentagon still has not completed the report. Air Force Lt. Col. Thomas Crosson, a Defense Department spokesman, said officials hoped to provide an interim response next week and a full version “in the coming months.” Department of Justice officials have also been reluctant to answer queries from lawmakers about their drone operations. The FBI first disclosed its use of small, unarmed surveillance drones to Congress in June 2013 and subsequently revealed that it had been flying them since 2006. The Justice Department inspector general reported last fall that the FBI had not developed new privacy guidelines for its drone surveillance and was relying instead on old rules for collecting imagery from regular aircraft. Since then, Justice officials have said they are reviewing their drone surveillance policies but have not disclosed any results. An FBI spokesman did not respond to a request for comment. The FBI has resisted other attempts to divulge details about the size of its drone fleet and its surveillance practices. Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit group that pushes for transparency in government, sued the FBI last year under the Freedom of Information Act for records on its drone program. Although the FBI has turned over thousands of pages of documents, many have been redacted or provide only limited insights. “They’ve been dragging their feet from the outset, and it’s been enormously frustrating,” said Anne Weismann, CREW’s chief counsel. “I don’t know if it’s because they

don’t want to expose the fact that they’ve been operating without any clear guidance or if they just don’t like to talk about it.”

Another section of Obama’s draft executive order would instruct the Commerce Department to help develop voluntary privacy guidelines for private-sector drone flights . The intent is to shape nonbinding industry standards for commercial surveillance instead of imposing new regulations by law. The executive order is an attempt to cope with a projected surge in drone flights in the United States. For years, the FAA has enforced a de facto ban on commercial drone flights. The FAA permits government agencies to fly drones only under tightly controlled circumstances. Under a 2012 law passed by Congress, however, the FAA is developing rules that will gradually open the skies to drones of all kinds. The drone industry, which lobbied Congress to pass the law, predicts $82 billion in economic benefits and 100,000 new jobs by 2025. On Thursday, the FAA approved requests from six Hollywood filmmakers to fly small camera-equipped drones on movie sets, the first time businesses will be allowed to operate such aircraft in populated areas. About 40 companies, including Amazon.com, have filed similar requests with the FAA. Amazon’s chief executive, Jeffrey P. Bezos, owns The Washington Post. Federal lawmakers have introduced several bills in recent years to regulate the use of drones by law enforcement agencies and strengthen

privacy protections, but none has passed. No department flies more drones than the Pentagon, which has about 10,000 of the aircraft in its inventory, from four-pound Wasps to the 15-ton Global Hawk. While many are deployed overseas,

Defense Department documents show that the military is making plans to base drones at 144 sites in the United States. Pentagon officials have said they soon expect to fly more drones in civilian airspace in the United States than in military-only zones. The Department of Homeland Security also conducts extensive surveillance with unarmed drones. Its Customs and Border Protection service has nine large Predator B models, which account for about three-quarters of all drone flight hours reported by federal civilian agencies. Customs and Border Protection drones patrol a 25-mile-wide corridor along the nation’s northern and southern borders, as well as over the Caribbean Sea and Gulf of Mexico. Records obtained by the Electronic Frontier Foundation show that the Border Patrol has also outsourced its drones on hundreds of occasions to other law enforcement agencies throughout the United States. Details of most of those operations remain secret.

More ev Barack 2015

(Obama, President of the United States, 15 February 2015, “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Us of Unmanned Aircraft Systems” https://www.whitehouse.gov/the-press-office/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-while-safegua.)

Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use

of Unmanned Aircraft Systems MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES SUBJECT:

Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft

Systems Unmanned Aircraft Systems (UAS) technology continues to improve rapidly, and increasingly UAS are able to perform a variety of

missions with greater operational flexibility and at a lower cost than comparable manned aircraft. A wide spectrum of domestic users --

including industry, private citizens, and Federal, State, local, tribal, and territorial governments -- are using or expect to use these systems,

which may play a transformative role in fields as diverse as urban infrastructure management, farming, public safety, coastal security,

military training, search and rescue, and disaster response. The Congress recognized the potential wide-ranging benefits of UAS operations

within the United States in the FAA Modernization and Reform Act of 2012 (Public Law 112-95), which requires a plan to safely integrate

civil UAS into the National Airspace System (NAS) by September 30, 2015. As compared to manned aircraft, UAS may provide lower-cost

operation and augment existing capabilities while reducing risks to human life. Estimates suggest the positive economic impact to U.S.

industry of the integration of UAS into the NAS could be substantial and likely will grow for the foreseeable future. As UAS are integrated

into the NAS, the Federal Government will take steps to ensure that the integration takes into account not only our economic competitiveness and public safety, but also the privacy, civil rights, and civil liberties concerns

these systems may raise. By the authority vested in me as President by the Constitution and the laws of the United States of America, and in

order to establish transparent principles that govern the Federal Government's use of UAS in the NAS, and to promote the responsible use of

this technology in the private and commercial sectors, it is hereby ordered as follows: Section 1 . UAS Policies and Procedures for

Federal Government Use . The Federal Government currently operates UAS in the United States for several purposes, including to

manage Federal lands, monitor wildfires, conduct scientific research, monitor our borders, support law enforcement, and effectively train our

military. As with information collected by the Federal Government using any technology, where UAS is the platform for collection,

information must be collected, used, retained, and disseminated consistent with the Constitution, Federal law, and other applicable

regulations and policies. Agencies must , for example, comply with the Privacy Act of 1974 (5 U.S.C. 552a) (the "Privacy Act"), which , among other things, restricts the collection and dissemination of individuals' information that is maintained in systems of records, including personally identifiable information (PII), and permits individuals to seek access to and amendment of records. (a) Privacy

Protections . Particularly in light of the diverse potential uses of UAS in the NAS, expected advancements in UAS technologies, and the

anticipated increase in UAS use in the future, the Federal Government shall take steps to ensure that privacy protections and policies relative to UAS continue to keep pace with these developments. Accordingly, agencies shall, prior to deployment of new UAS technology and at least every 3 years, examine their existing UAS policies and procedures relating to the collection, use, retention, and dissemination of information obtained by UAS, to ensure that privacy, civil rights, and civil liberties are protected. Agencies

shall update their policies and procedures, or issue new policies and procedures, as necessary. In addition to requiring compliance with the

Privacy Act in applicable circumstances, agencies that collect information through UAS in the NAS shall ensure that their policies and

procedures with respect to such information incorporate the following requirements: (i) Collection and Use . Agencies shall only collect

information using UAS, or use UAS-collected information, to the extent that such collection or use is consistent with and relevant to an

authorized purpose. (ii) Retention . Information collected using UAS that may contain PII shall not be retained for more than 180 days

unless retention of the information is determined to be necessary to an authorized mission of the retaining agency, is maintained in a system

of records covered by the Privacy Act, or is required to be retained for a longer period by any other applicable law or regulation. (iii)

Dissemination . UAS-collected information that is not maintained in a system of records covered by the Privacy Act shall not be

disseminated outside of the agency unless dissemination is required by law, or fulfills an authorized purpose and complies with agency

requirements. (b) Civil Rights and Civil Liberties Protections . To protect civil rights and civil liberties, agencies shall: (i)

ensure that policies are in place to prohibit the collection, use, retention, or dissemination of data in any manner that would violate the First Amendment or in any manner that would discriminate against persons based upon their ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity , in violation of law; (ii) ensure that UAS activities are performed in a manner consistent with the Constitution and applicable laws, Executive Orders, and other Presidential directives; and (iii) ensure that adequate procedures are in place to receive, investigate, and address, as appropriate, privacy, civil rights, and civil liberties complaints. (c) Accountability . To

provide for effective oversight, agencies shall: (i) ensure that oversight procedures for agencies' UAS use, including audits or assessments,

comply with existing agency policies and regulations; (ii) verify the existence of rules of conduct and training for Federal Government

personnel and contractors who work on UAS programs, and procedures for reporting suspected cases of misuse or abuse of UAS

technologies; (iii) establish policies and procedures, or confirm that policies and procedures are in place, that provide meaningful oversight

of individuals who have access to sensitive information (including any PII) collected using UAS; (iv) ensure that any data-sharing

agreements or policies, data use policies, and record management policies applicable to UAS conform to applicable laws, regulations, and

policies; (v) establish policies and procedures, or confirm that policies and procedures are in place, to authorize the use of UAS in response

to a request for UAS assistance in support of Federal, State, local, tribal, or territorial government operations; and (vi) require that State,

local, tribal, and territorial government recipients of Federal grant funding for the purchase or use of UAS for their own operations have in

place policies and procedures to safeguard individuals' privacy, civil rights, and civil liberties prior to expending such funds. (d)

Transparency . To promote transparency about their UAS activities within the NAS, agencies that use UAS shall, while not revealing information that could reasonably be expected to compromise law enforcement or national security: (i)

provide notice to the public regarding where the agency's UAS are authorized to operate in the NAS; (ii) keep the public informed about the agency's UAS program as well as changes that would significantly affect privacy, civil rights, or civil liberties ; and (iii) make available to the public, on an annual basis, a general summary of the agency's UAS operations during the previous fiscal year, to include a brief description of types or categories of missions flown, and the number of times the agency provided assistance to other agencies, or to State, local, tribal, or territorial governments. (e) Reports . Within 180 days of

the date of this memorandum, agencies shall provide the President with a status report on the implementation of this section. Within 1 year of

the date of this memorandum, agencies shall publish information on how to access their publicly available policies and procedures

implementing this section. Sec. 2 . Multi-stakeholder Engagement Process . In addition to the Federal uses of UAS described in

section 1 of this memorandum, the combination of greater operational flexibility, lower capital requirements, and lower operating costs could

allow UAS to be a transformative technology in the commercial and private sectors for fields as diverse as urban infrastructure management,

farming, and disaster response. Although these opportunities will enhance American economic competitiveness, our Nation must be mindful

of the potential implications for privacy, civil rights, and civil liberties. The Federal Government is committed to promoting the responsible

use of this technology in a way that does not diminish rights and freedoms. (a) There is hereby established a multi-stakeholder engagement

process to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private

UAS use in the NAS. The process will include stakeholders from the private sector. (b) Within 90 days of the date of this memorandum, the

Department of Commerce, through the National Telecommunications and Information Administration, and in consultation with other

interested agencies, will initiate this multi-stakeholder engagement process to develop a framework regarding privacy, accountability, and

transparency for commercial and private UAS use. For this process, commercial and private use includes the use of UAS for commercial

purposes as civil aircraft, even if the use would qualify a UAS as a public aircraft under 49 U.S.C. 40102(a)(41) and 40125. The process shall

not focus on law enforcement or other noncommercial governmental use. Sec. 3. Definitions . As used in this memorandum: (a) "Agencies" means executive departments and agencies of the Federal Government that conduct UAS operations in the NAS. (b) "Federal Government use" means operations in which agencies operate UAS in the NAS. Federal Government use includes agency UAS operations on behalf of another agency or on behalf of a State, local, tribal, or

territorial government, or when a nongovernmental entity operates UAS on behalf of an agency. (c) "National Airspace System" means the common network of U.S. airspace; air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information, and services; related rules, regulations, and procedures; technical information; and manpower and material. Included in this definition are system components shared jointly by the

Departments of Defense, Transportation, and Homeland Security. (d) "Unmanned Aircraft System" means an unmanned aircraft (an aircraft that is operated without direct human intervention from within or on the aircraft) and

associated elements (including communication links and components that control the unmanned aircraft) that are required for the pilot or

system operator in command to operate safely and efficiently in the NAS. (e) "Personally identifiable information" refers to information that can be used to distinguish or trace an individual's identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual,

as set forth in Office of Management and Budget Memorandum M-07-16 (May 22, 2007) and Office of Management and Budget

Memorandum M-10-23 (June 25, 2010). Sec. 4 . General Provisions. (a) This memorandum complements and is not intended to

supersede existing laws and policies for UAS operations in the NAS, including the National Strategy for Aviation Security and its supporting

plans, the FAA Modernization and Reform Act of 2012, the Federal Aviation Administration's (FAA's) Integration of Civil UAS in the NAS

Roadmap, and the FAA's UAS Comprehensive Plan. (b) This memorandum shall be implemented consistent with applicable law , and subject to the availability of appropriations. (c) Nothing in this memorandum shall be

construed to impair or otherwise affect: (i) the authority granted by law to an executive department, agency, or the head thereof; or (ii) the

functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (d)

Independent agencies are strongly encouraged to comply with this memorandum. (e) This memorandum is not intended to, and does not,

create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments,

agencies, or entities, its officers, employees, or agents, or any other person. (f) The Secretary of Commerce is hereby authorized and directed

to publish this memorandum in the Federal Register.

Mexico/Border racism adv