The High Costs of Cheap Drones

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.

Space-Shifting Ruling Hampers Fair Use

Last month, Judge Richard Posner called on Congress and the courts to reform our broken copyright system.  One of the most severe problems, he noted, is our increasingly narrow understanding of what constitutes the “fair use” of copyrighted works without a license.  The boundaries of fair use have always been tricky to navigate, but as Judge Posner argues, it is “not widely recognized . . . that a narrow interpretation of fair use can have very damaging effects on creativity.”

The fundamental problem is a failure to understand what the purpose of copyright protection is. According to Kevin Smith, who answers copyright questions at Duke University, content industries now assert that “copyright exists to support their businesses, so any new way they find to extract a little extra money from the rights they hold should be endorsed and protected by the courts.”  In a recent essay, John Mellancamp bemoans how the internet has ruined artists’ “gravy train” that permitted a song writer to depend on income from “one or two hit records 10 or 50 years ago.”  But copyright was never intended to serve as welfare to artists; instead, the aim of the Copyright Clause is simply “[t]o promote the Progress of Science and useful Arts.”

In short, the copyright monopoly is intended to be limited.  It presents no affirmative obligation to protect future potential revenue streams that exist solely for the benefit of content industries.  Fair use exceptions are essential to ensure that our copyright regime can produce the wider public benefits for which it is designed.  Unfortunately, while the boundaries of fair use remain often untested or ignored, copyright law remains beholden to restrictive and cumbersome rules established by the Digital Millennium Copyright Act.

Passed in 1998, the law has become an albatross on the larger body of copyright law.  Case in point: the Library of Congress’ triennial review of 17 USC § 1201(a)(1)(A).  In a misguided effort to combat piracy, the DMCA broadly prohibits efforts to “circumvent” digital rights management schemes.  However, Section 1201(a)(1)(C) directs the Librarian of Congress and its Register of Copyrights to evaluate whether circumvention limitations adversely restricts the ability of individuals to make non-infringing uses of copyrighted works.  It provides for public comment and review every three years.

In October, the fifth triennial review produced a new series of five exemptions to the DMCA’s circumvention prohibition:

[quote author=”Author” style=”normal” color=”#000000″] For the next three years, you’ll be allowed to jailbreak smartphones but not tablet computers. You’ll be able to unlock phones purchased before January 2013 but not phones purchased after that. It will be legal to rip DVDs to use an excerpt in a documentary, but not to play it on your iPad. [/quote]

“None of these distinctions makes very much sense,” Ars Technica’s Timothy Lee concludes.  While the schizophrenic rules on jailbreaking and unlocking smartphones drew the most headlines, it is the final exemption – DVD-ripping – that demonstrates how absurd and arbitrary the current process is.

DVD-ripping, like CD-burning, facilitates what is termed “space shifting,” or moving a single file for use on one medium to another.  Record companies, including the RIAA, have long agreed that this sort of activity is completely legal, and Rep. Darrell Issa (R-Calif.), who sits on House Subcommittee on Intellectual Property, Competition, and the Internet, has explained that making digital copies is “a-okay.” He even went so far as to cite ripping a DVD in order to play a film on your iPad as a good example of an acceptable personal use.

In its recent review, the Register of Copyrights and the Librarian of Congress dismissed the notion that space shifting facilitated fair use.  Further, in order to deny any exemption, the pair relied upon the fact that no court has yet ruled that space shifting constitutes fair use.  As Lee explains, this produces a classic Catch-22.  “To get such a ruling, someone would have to rip a DVD, get sued in court, and then convince a judge that DVD ripping is fair use.  But in such a case, the courts would probably never reach the fair use question, because—absent an exemption from the Librarian of Congress—circumvention is illegal whether or not the underlying use of the work would be a fair use,” he writes.  Beyond dismissing any fair use rationale, the Register of Copyrights also was concerned that space shifting could “adversely affect the legitimate future markets of copyright owners.”

Smith insists that a broad understanding of fair use is essential to ensure copyright law serves its primary public purpose.  “If some private businesses can no longer survive in the new environment, that is not the primary concern of the courts, and certainly no reason to reshape the law,” he writes.  For the Library of Congress, however, protecting the future markets of content industries and providing a gravy train for copyright holders remains paramount to ensuring the DMCA advances the public aim of copyright law.

While the Library’s current interpretation will restrict both competition and creativity, the public’s next opportunity to question the absurdity and arbitrariness of the Library of Congress will come in late-2015—unless Congress or the courts step in.

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