The bipartisan drumbeat for privacy safeguards regarding domestic drone use continued at a congressional hearing Friday morning. The House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations was overshadowed in everything but name by the Ways and Means inquiry into the IRS’s political targeting of conservative groups, as reported by my colleague Kaylin Bugos. The proceedings illustrated that members of both parties are wary of drones’ privacy implications but open to their considerable promise. While addressing lingering regulatory questions, expert witnesses added details to the emerging picture of our nation’s buzzing future. The hearing was dominated by two issues: Law enforcement surveillance and the expectation of privacy.
Chris Calabrese of the American Civil Liberties Union said the relatively low cost and compact size of unmanned platforms mitigated the natural limits of traditional helicopter surveillance, noting a large blimp could monitor many square miles or a small helicopter could peer into windows. The advancement of camera technology was a theme: Greg McNeal of the Pepperdine School of Law described reading name tags and facial expressions from two miles away; Boston University School of Law’s Tracey Maclin touched on capabilities such as night vision, biometric facial recognition, and microwave scanners that can see through walls. This goes beyond the plainview standards previously used to examine the reasonableness of searches under the Fourth Amendment, he said.
The ACLU representative laid out four domestic drone policy principles: No mass surveillance, minimal information retention, no weaponization of drones, and the need for oversight, specifically the involvement of communities in any law enforcement decision to acquire a drone and notification of usage. Calabrese specified that law enforcement agencies should only deploy drones with a specific objective in mind under a warrant issued according to a traditional probable cause standard, and any information should be discarded once its specific reason for being gathered is exhausted. “In the 21st century as we get these new technologies we have to make sure our values come with us,” he explained, adding that Congress is well-suited to that role, although the FAA can play an expert function.
Saying the Fourth Amendment offers the most protection, the Brooking Institution’s John Villasenor asserted courts are in the best position to guard against law enforcement abuses. He also pointed to a longstanding body of common law and state civil and criminal statutes regarding invasion of privacy. But the nature of public space has changed, Calabrese argued, because most people do not assume they are being recorded while out and about. Law enforcement cameras mounted on traffic signals and squad cars are already ubiquitous, but drones made further the trend. “A camera trained on someone’s home persistently day after day will be treated the same whether it is on a drone or mounted a different way,” said McNeal. Maclin seemingly confirmed this, asserting there would be no constitutional distinction whether a camera was mounted on a drone or elsewhere.
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