In a post for the IAPP’s Privacy Perspectives blog, I discuss my recent experiences flying a DJI Phantom 2 drone and share some thoughts on how industry (and government) can work together to address the perceived privacy problems that could emerge from flying robots over our heads. // More on Privacy Perspectives.
On Monday, Sen. Markey introduced legislation designed to expand legal safeguards to protect individual privacy from invasion by commercial and government use of drones. The bill amends the FAA Modernization and Reform Act of 2012, which directed the FAA to integrate unmanned aircraft systems (UAS) into U.S. airspace by October 2015. The law, however, was silent as to the transparency and privacy implications of domestic drone use. Under pressure from advocacy groups and Congress, the FAA solicited public comment about potential privacy and civil liberties issues during its UAS test site selection process, ultimately suggesting only that UAS privacy policies “should be informed by the Fair Information Practice Principles.”
This section-by-section summary looks at how Sen. Markey’s bill would amend current law to establish national guidelines for domestic drone use.
Sec. 1 – Short Title
Drone Aircraft Privacy and Transparency Act of 2013
Sec. 2 – Findings
The bill notes that the FAA projects that 30,000 drones could be in sky above the United States by 2020, and further, that current law provides for no explicit privacy protections or public transparency measures with regards to drone use by public or private entities.
Sec. 3 – Guidance and Limitations for UAS
The major substance of this section details new requirements for data collection statements by commercial drone operators and data minimization statements by law enforcement. The bill’s provisions with regards to law enforcement appear to bolster significantly Fourth Amendment privacy protections. Agencies would be subject to a warrant requirement for any generalized drone surveillance absent exigent circumstances, such as (1) imminent danger of death or serious injury or (2) DHS has determined credible intelligence points to a high risk of terrorist attack. Moreover, any information collected that was unrelated to a potential exigency is required to be destroyed.
While these provide practical, procedural limitations on surveillance, the bill also forces law enforcement to consider how they plan to use drones prior to their implementation. Law enforcement offices will be required to file an explanation about any policies adopted to minimize the collection of data unrelated to a warrant-requirement, how excess data will be destroyed, and detailing any audit or oversight mechanisms. By making licenses contingent on these statements, the bill may encourage careful consideration of privacy challenges before law enforcement begins broad use of drones.
For commercial operators, the bill would prohibit the FAA from issuing licences without a statement that provides information about who will operate the drone, where the drone will be flown, what data will be collected and how that data will be used, including information about whether any information will be sold to third parties, the period for which information will be retained, and contact information to receive complaints. Depending upon how onerous these statement requirements become, this section may present some First Amendment challenges, particularly public efforts to advance newsgathering and the free flow of information.
The FAA would be charged with creating a publicly searchable website that would list all approved drone licenses, including copies of data collection or minimization statements, any data security breaches, and details about the time and location of all drone flights.
This section also calls for the Departments of Homeland Security, Commerce, and Transportation and the FTC to conduct a study to identify any potential challenges presented by drones to the OECD privacy guidelines. It would also require the current UAS rulemaking underway to take those privacy guidelines into consideration.
Sec. 4 – Enforcement
The section provides for concurrent enforcement by state authorities and the Federal Trade Commission under its Section 5 authority. It also allows for a private right of action for violations of either an entity’s data collection or data minimization statement. Remedies include equitable relief, and the greater of actual monetary damages or statutory damages of up to $1,000 for each violation.
Sec. 5 – Model Aircraft Provision
Finally, the bill provides for an exception for model aircraft.
Three weeks into the new year, and the United States has already launched eight drone strikes across Pakistan and Yemen, killing 50 people. Among those killed was Maulvi Nazir, a Taliban leader in tribal Pakistan. While Nazir’s death has been portrayed as another in the long line of successful strikes against militants who may threaten America, it also has demonstrated the collateral damage that comes with our secretive drone war. Thousands of Pakistanis took to the streets in protest after Nazir’s death, denouncing the United States, and senior Pakistani security officials worry his removal will only increase violence and instability in the region.
Our embrace of drones has changed how the United States weighs the costs and benefits of waging war. Drones are cheap and effective, so much so that they make it easy for government officials and the American public to forget the sacrifices and consequences that come with using lethal force against another nation. As the United States increasingly relies on drone warfare, it is past time to have a serious public discussion about whether drone strikes are to be the exception or the rule. A recent report from the Council on Foreign Relations concludes that drone warfare presents four pressing problems: its foreign policy implications, unknown number of civilian casualties, lack of transparency or effective oversight, and unresolved legal questions. Whatever benefits our drone strikes may have, each of these issues raises serious concerns about the wisdom of relying on drones as a regular tool of war.
Former government officials and policymakers have voiced concerns that the United States is using drones as a crutch rather than developing a serious long-term strategy to combat international terrorism. In an interview Monday, retired General Stanley McChrystal, who developed the U.S. counterinsurgency strategy in Afghanistan, cautioned that drone warfare produces “resentment . . . much greater than the average American appreciates. They are hated on a visceral level, even by people who’ve never seen one.” And for good reason—a study last fall by NYU and Stanford law schools revealed with vivid detail how the constant presence of drones has terrorized the civilian communities over which they patrol.
Critics were quick to contend that the study had a small sample size, but unfortunately, that reflects one of the biggest problems with our use of drones. Hard data is difficult to come by. It may be true that drone warfare produces fewer civilian casualties, but there is no way to know at present. We cannot even be certain how many drone strikes have occurred. Data aggregated by the Bureau of Investigative Journalism suggests that somewhere from 2,562 to 3,325 people in Pakistan alone were killed by drones between June 2004 and September 2012. Headlines suggest a steady stream of successes in killing militants from above, but “militant” has been so broadly defined by the Obama administration as to include any military-age male.
The standards that guide when we can target these so-called militants can amount to nothing more than the CIA’s belief that an individual is engaged in a pattern of suspicious behavior. In fact, there are very few clear guidelines governing America’s use of drones, or if there are, the government refuses to say. On the very same day Nazir was killed in Pakistan, a U.S. federal court denied a request by the American Civil Liberties Union andThe New York Times to force the Obama administration into revealing the legal basis for its targeted killing program. Lamenting the “Alice-in-Wonderland nature of this pronouncement,” the court conceded it was caught in a “paradoxical situation” and a “veritable catch-22.” But like United Nations special rapporteurs and members of Congress who had tried in the past, the court was unable to lift the administration’s veil of secrecy. Whatever legal justifications exist for our use of drone strikes, the administration refuses to disclose them, and our drone warfare program remains officially classified.
Absent any meaningful oversight or public discussion it is impossible to determine whether our use of drone strikes has been either effective or legal. A tremendous disconnect exists between American decision-makers and the people in Pakistan, in Somalia, and in Yemen who feel the actual impact of our drone strikes. The capacity of the United States to wage war without placing a single soldier in harm’s way has made us blind to the growing chorus of people whose lives we have taken and societies we have destabilized all in the name of more efficient war. President Obama began his presidency with promises of openness and transparency, and he was elected with a mandate to bring sanity to the fight against al Qaeda and the Taliban. He should begin the new year and his second term by reevaluating whether drone warfare accomplishes either.