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“Drones; National Security or Privacy, which do Americans value more”

Shayne Lisa

Dr. FeltsCapstone 402Due May 6th 2015

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Abstract

The use of drones is something that is hotly debated by both the American and

International communities. At first they were only used for oversea surveillance

during the cold war. The USSR and the U.S used what we call UVAs. The first major

war UVAs were used in was the Vietnam War. Of course their existence and usage

was kept a secret from the public and the international community. The launching

of the War on Terror is when these UVAs became weapons. These surveillance

drones became predator drones with a missile attached to its exterior and soon

enough they became one of President Obama’s favorite terrorist deterrent. But now

with the war on terror cooling off and international backlash on drone strikes at an

all time high these drones will need a new purpose. The U.S government isn’t about

to allow millions of dollars of technology and hardware to go to waste. Therefore,

the purpose they have found for their expensive drones is the domestic surveillance

of U.S citizens. In this paper I will examine the debate over the usage of domestic

surveillance drones in the United States of America. My research has been gathered

from scholarly journals, newspaper articles, blogs and scholarly papers fond online.

Each piece of literature I found either defends or attacks the usage of surveillance

drones. Due to the research I found I look to explain both the negative responses to

the usage of domestic surveillance drones by both the public and our elected

representatives as well as the positive response from law enforcement agencies. In

the end, my research led me to believe that the negatives of domestic surveillance

drones far outweigh the positives. After reading the research I’ve gathered I believe

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you will reach the same conclusion that I have, our privacy outweighs the

governments claim of protecting our national security.

I. Introduction

Domestic surveillance is something that is deeply rooted in the history of

technology. In the late 18th century a man by the name of Jeremy Bentham

developed the idea of the panopticon. The panopticon allowed for one person to

be able to watch numerous inmates without the inmates knowing they were

being watched. Although the watcher couldn't watch all the inmates at the same

time the inmates still acted like they were being watched 24/7, thus they are

controlling their behavior constantly. Prior to the war on terror, drones were

used simply for surveillance reasons but Sifton writes

“The CIA had been flying unarmed drones over Afghanistan since 2000. It

began to fly armed drones after the September 11 attacks. Some were used

during the air war against the Taliban in late 2001. But by February 2002 the

CIA hadn’t yet used a drone for a strike outside military support. The

February 2002 attack was a pure CIA kill operation, undertaken separately

from any ongoing military operation” (Sifton 2012).

The U.S government realized the capability of these drones and starting in 2002

they began to use them for military use. Sifton focuses on drone usage overseas but

as the war on terror declines these drones are going to start coming back to

America. With the rise of domestic surveillance drones we could eventually see

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people in constant fear over whether they are being watched or not. While some

believe drone surveillance can lead to lower crime rates and a safer America, most

believe drone surveillance over U.S skies is a bad idea and breach of our rights as

Americans. Specifically it is the fourth and fifth amendments that are being

breached and until regulations and laws are put into writing the drone technology

will continue to grow and become more accepted.

A. Fourth Amendment

Perhaps one of the biggest issues with the domestic surveillance drone

program is that it violates U.S citizen’s fourth and fifth amendments. Both these

amendments are in the bill of rights and are seen as building blocks of our

civilization. The American Civil Liberties Union is taking a strong stance against

domestic surveillance drones. Stanley and Crump released a report on domestic

surveillance drones in 2011. They acknowledge the lack of education citizens have

about drones, they are quoted as saying

“Many Americans have heard of these aircraft, commonly called drones,

because of their use overseas in places like Afghanistan and Yemen. But

drones are coming to America. The Federal Aviation Administration (FAA)

has so far held up their deployment over safety concerns, but that agency is

under strong industry and Congressional pressure to pave the way for

domestic deployment. Meanwhile, the technology is quickly becoming

cheaper and more powerful, interest in deploying drones among police

departments is increasing, and our privacy laws are not strong enough to

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ensure that the new technology will be used responsibly and consistently

with democratic values.” (Stanley&Crump 7).

Americans aren’t ready for what the federal government potentially has in store for

us. Like Stanley and Crump said above Americans only know drones as weapons

used in the Middle East but with the War on Terror coming to a close these drones

are going to begin flying over U.S skies. Stanley and Crump are afraid of what is to

come, they believe “We need a system of rules to ensure that we can enjoy the

benefits of this technology without bringing us a large step closer to a “surveillance

society” in which our every move is monitored, tracked, recorded, and scrutinized

by the authorities.” (Stanley&Crump 7). Stanley and Crump like Olivito and

McBride potentially see American becoming a surveillance society much like the one

seen in George Orwell’s 1984. McBride gives an example that we are approaching a

surveillance state, he says “in 1989 In the court case Florida v. Riley, the Supreme

Court determined that a police officer's naked-eye observation into the defendant's

greenhouse, through a partially open roof, from a helicopter circling 400 feet above

the ground was not a "search" within the meaning of the Fourth Amendment.”

(McBride 74). This was more than twenty-five years ago and now we have

unmanned aircrafts that are being allowed to do the same thing. Olivito proposes

many resolutions to the issue that drone surveillance is unconstitutional due to it

violating the fourth amendment right on unlawful search and seizure. One such

proposition is

“courts should apply the federal constitutional right to privacy through a

balancing test that weighs individual privacy interests against government

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interests in drone surveillance. If a court finds a violation of the

constitutional right to privacy, the court could limit the storage, aggregation,

transfer, and distribution of information observed with

respect to the challenged drone surveillance” (Olivito 672).

In the end it is the courts that decide whether the fourth amendment is being

violated by these domestic surveillance drones. Our fourth amendment isn’t being

protected because the drone technology is increasing faster than the federal and or

state governments can pass laws. According to the Electric Frontier Foundation

“Privacy law has not kept up with the rapid pace of drone technology, and police

may believe they can use drones to spy on citizens with no warrant or legal process

whatsoever.” (Surveillance drones EFF). If what the EFF is saying is in fact true this

is a clear violation of our fourth amendment. Representatives in our congress have

shown very little support for the domestic drone program yet they wont pass a bill

that will have the federal government regulate drones. One such congressman who

is against the domestic use of drones is Senator Rand Paul a Republican

representing Kentucky. Rand is famous for telling CNN that if a drone flies over his

house, “they better beware, because I’ve got a shotgun.” (Lerner). Paul was asked by

CNN’s Ashley Codianni “whether all drones should be banned outright which in

turn led to him saying Drones should only be used according to the Constitution,”

(Lerner). Rand would support Olivito, Stanley, Crumps and the EFF’s findings when

it comes to drones violating our fourth amendment. In Rand’s eyes that is seen as

unconstitutional. Only recently has Rand declared his bid for the President of the

United States, he is one of the few candidates taking the drone program issue by

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storm. He wants the American public to know he will not allow domestic

surveillance drones to violate our constitutional right. In Laura Piotras’ Citizenfour,

which stars, the fugitive Edward Snowden talks about the NSA secrets he brought to

light. He is labeled a traitor and or whistleblower but believes he did the right thing

in informing the American people what exactly was going on right under our noses.

He stresses foreign surveillance but also talks about domestic surveillance. He

claims drones are already in our skies and have the capability to see into our homes.

When it comes to our homes Thompson is a strong supporter of the fourth

amendment. He says

“The home has always held a central place in American life, and remains the

area accorded the greatest Fourth Amendment protection. The Fourth

Amendment protects this zone of privacy by ensuring that “the right of the

people to be secure in their ... houses ... against unreasonable search and

seizure, shall not be violated[.]”In most instances, the Supreme Court has

rigorously adhered to this safeguard. For instance, although police officers

may make a warrantless arrest of an individual for a felony offense

committed in public, they may not step inside his home without a warrant,

barring any recognized exception.” (Thompson 9).

With surveillance drones its possible for law enforcement agencies to see inside

your home without needing a warrant. This is what worries Thompson the most as

it's a direct violation of the fourth amendment. Schlag is just as worried as

Thompson, he believes our current laws don't protect our fourth amendment rights

to the their fullest capabilities. He wants there to be revisions to these laws because

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both public entities and third parties can use drones to invade a person’s privacy.

The drone technology is moving faster than our privacy laws so Schlag calls for a

“federal baseline consumer protection act that would establish a reasonable level of

protection for an individual’s privacy by ensuring drone use was being monitored

from a privacy protection standpoint and limiting the use of drones in a way that

would invade an individual’s privacy expectations.’” (Schlag 13). The reason for this

uproar in privacy concerns is the increasing capabilities of drones.

B. Drone Capability

Perhaps most important aspects of the evolution of the drone are the

decrease in its size and the muffling of its sound. The military funds the production

of smaller and quieter drones due to their maneuvering capabilities as well as their

ability to remain unseen. Its also interesting to note that drone prices are actually

decreasing not increasing as you’d expect due to the technology advances. Stanley

and Crump write in their ACLU report

“The amazing continual decreases in the prices of electronics that have

become normal in our time all but guarantee that the surveillance

technologies attached to UAVs will become less expensive and yet more

powerful—and with mass production, the aircraft that carry those

electronics will become inexpensive enough for a police department to fill

the skies over a town with them.” (Stanley and Crump 10).

This is alarming as law enforcement agencies can easily manage to add surveillance

drones to their budgets and have already have. The surveillance capabilities that

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can be put on most drones are numerous. These include night-vision, high-powered

zoom lenses, see-through imaging, and video analytics. Olivito of the Ohio State Law

Journal gives a lot of the same examples as Stanley and Crump and stresses that

most of the smaller drones are powered by electricity making them almost silent.

You could be getting spied on and you wouldn't even know it. The Gimbal camera is

an example of the surveillance capability that drones have now, this camera can stay

focused on an object even as the drone continues its flight path. Olivito also writes

about the eaves dropping capabilities of drones, he says

“Drones engaged in perch-and-stare surveillance might also utilize acoustical

eavesdropping devices, such as conventional microphones or laser optical

microphones. In terms of software, drones operating in the near future will

likely utilize video processing systems, including face and body recognition

technology.” (Olivito 9).

So not only can they see what you are doing they can in some cases hear what you

are saying too. This is all without a warrant until regulations are put forward to

ensure our rights are protected. The federal government actually does have some

restrictions on law enforcement usage of drones but that's only due to crowded

airspace, something that can easily be resolved. But some deployments of UAVs

have been made both over the U.S and on its borders.

C. Current Domestic Drone Usage

We can’t forget that mass surveillance of citizens is something that is and has

already been happening not only in the U.S but in other nations as well. Perhaps the

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most famous is the London street cameras that seem to be on ever corner in the city

of London. In theory drone surveillance would be a camera in the sky very similar

to the London street cameras. Also New York City has a very advanced surveillance

system with scanning capabilities that can scan any person on the street and tell

them if he is carrying a gun or not. Surveillance is nothing new I think what scares

people the most is how the drones were used during the War on Terror, as weapons,

and perhaps this could happen in the U.S. They aren’t weaponized yet, as far as we

know, but they are being used by the FBI, DEA and most frequently by the Customs

and Border Protection agency.

“The Customs and Border Protection agency has operated drones around the

borders since 2005.Customs and Border Protection drones uncover

intelligence on illegal border crossings and major drug trafficking operations.

Likewise, the Coast Guard hopes to use drones “to reconnoiter large

maritime areas.” The FBI and the Drug Enforcement Agency have utilized

drones within the United States; the Customs and Border Protection agency

has even made its drones available to local police departments for domestic

law enforcement operations. On a local scale, numerous municipal police

departments have obtained permission from the FAA to use drones. These

drones have been used to help with security at sporting events, survey

private property, and assist with crime prevention.” (olivito 10).

Even as I write this drones may be flying overhead making their surveillance

rounds. While local police departments haven’t really begun to use drones as much

as the larger agencies such as the FBI, DEA and Customs and Border Protection

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agency they may soon start due to the success these larger agencies are having. The

drone warfare and surveillance programs have been successful overseas so the

federal government is thinking why can’t that success be duplicated domestically.

According to the Baltimore Sun police journals the usage of drones is something

many departments are willing to try out. They argue that drones have the capability

to help keep officers out of harms way. Drones can perform dangerous tasks that

usually would put one or more officers in immediate danger. Wadhwa from the

Washington Post also recognizes that drones are effective yet some can be rather

costly. A costly drone is the predator drone, until 2011 no one thought predator

drones could be used in the United States. But Stanley and Crump, of the ACLU, give

an example of a report that predator drones are being used by federal agencies in

America. They write

“The Los Angeles Times reported in December 2011 that CBP has been

making its Predator drones available for domestic law enforcement

operations by local police departments, and federal agencies such as the FBI

and the Drug Enforcement Administration have used Predators inside the

United States as well. This expanded use of the Predators was carried out

with no public knowledge or debate.” (Stanley and Crump 13).

This is extremely alarming that not only are their surveillance drones over U.S skies

there are also predator drones. Law enforcement agencies have been using both

surveillance and predator drones without the public’s knowledge. Edward Snowden

brought to light some of the drone usage that the federal government has allowed

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and just how much data the federal government is collecting about U.S citizens. The

FAA is really the only thing keeping mass drone use from happening.

D. FAA Regulations

The Federal Aviation Administration is responsible for aviation laws from

the ground up, this includes the newly introduced civilian and government drones.

Until recently the FAA hasn't taken a hard stance on drones and neither has the

executive office. In the USA today article by Jansen he reports that both the FAA and

the Obama administration have issued laws about drone use in America. For the

Obama administration Jansen writes

“President Obama signed a presidential memorandum governing how

federal agencies will use drones of all sizes. The memo, which has the same

legal effect as an executive order, requires agencies to publish within one

year how to access their policies about drones, particularly about the

collection, retention and dissemination of information. The goal is to ensure

that uses don't violate the First Amendment or discriminate against people

based on ethnicity, race, gender, religion or sexual orientation.” (Jansen

2015).

Above it says the Obama administration is worried about the first amendment but

they also should be worrying about the fourth amendment. It is reassuring to see

the administration taking a side when it comes to drone use but will these federal

agencies cooperate we’ll see. As for the FAA they released regulations of their own,

Jansen writes

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“the FAA proposal would allow drones weighing up to 55 pounds to fly

within sight of their remote pilots during daylight hours. The aircraft must

stay below 500 feet in the air and fly less than 100 mph. People flying drones

would need to be at least 17 years old, pass an aeronautics test and be vetted

by the Transportation Security Administration, but a certificate wouldn't

require the flight hours or medical rating of a private pilot's license.” (Jansen

2015).

These regulations help control the civilian usage of drones but not the federal

surveillance program. While it's a positive step forward for regulating drones it still

isn’t enough. Congress needs to pass a bill with clear-cut guidelines for both civilian

and federally used drones and until this happens drone use will continue to rise.

Jansen also sees that these regulations passing means drones will be integrated into

the airspace, he writes “The FAA proposal and the presidential memo represent the

latest progress in integrating drones into U.S. airspace. Congress set a September

2015 deadline for establishing rules and standards” (Jansen 2015). Its hard to tell

whether the FAA is working more with the people or with the Federal Government.

The ACLU thinks it's the latter, they want more regulations and better protection of

our constitutional rights. The ACLU also criticizes the judicial branch and their

ruling in court cases having to deal with privacy and surveillance. A specific case

they criticize is California v. Ciraolo. Stanley and Crump write,

“In the 1986 decision California v. Ciraolo the Supreme Court focused on

whether an individual has a privacy interest in being free from aerial

surveillance of his backyard. The police had received a tip that Dante Ciraolo

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was growing marijuana in his backyard, but high fences prevented them from

viewing his backyard from the street. The police borrowed a plane, flew it

over the backyard and easily spotted marijuana plants growing there. Ciraolo

argued that his Fourth Amendment rights were violated because the

government did not get a warrant. The Court rejected this argument,

explaining that there was no intrusion into his privacy because “[a]ny

member of the public flying in this airspace that glanced down could have

seen everything that these officers observed” (Stanley and Crump 19).

Its the supreme court that interrupts the constitution and more often than not they

have decided that the airspace is public not private as Ciraolo argued. The only way

this changes is with new supreme court justices who interrupt the constitution a

different way than the previous judges.

E. Privacy v National Security

I surveyed ten people and asked them whether they favor their privacy or

their national security. My results weren’t surprising as 8 out of the 10 people I

surveyed said privacy was more important to them than national security. Of

course I asked people from different demographics and backgrounds. Most with

different majors and from different departments at the college. The two people who

claimed they valued national security more were staunch GOP members who claim

they have nothing to hide so why should mass surveillance trouble them. What they

didn't realize is just how much mass drone surveillance would effect them. After

telling them the new capabilities of drones and how eventually the surveillance and

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data collected could have a negative impact on your employment and in turn your

life. I let that sink for a little bit than I asked them again what they valued more, one

of the participants changed their minds but the other wouldn’t budge. I think my

survey holds true to the rest of the public even though it was a small sampling size.

The majority of people would favor having privacy over having tighter national

security. The public has seen what drones can do in the middle east and fear that

with the end of the war on terror these tactics could be adopted in homeland

America. Drones are already being used for “mission creeps” and “tracking”

(Stanley and Crump 17) so who’s to say they wont be integrated more into our

society. But Stanley and Crump also bring an important point to light, while drones

can be used by law enforcement your average citizen can also use them.

“One point that is often made with regards to new surveillance technologies

is that, while they may increase government surveillance of individuals, they

can also increase individuals’ ability to record the activities of officials, which

can serve as a check on their power.” (Stanley and Crump 19).

With the current uproar over police violence drones could potentially be used to

expose police violence and ever deter it from occurring. With all the negatives that

come with drones there are still a few positives but clearly the negatives outweigh

the few positives.

II. Summary of Research

From the research I’ve gathered, from the many sources I found, it seems

domestic surveillance drones are clearly infringing on our constitution rights as

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Americans. The government is working fast enough to regulate and possibly deem

illegal or legal the use of drones by civilians but especially by government agencies.

The U.S is already on its way to becoming a police state and like McBride said “we

are living in Orwell’s 1984” (McBride 74). From what I found our fourth

amendment is in the most jeopardy when it comes to mass surveillance drones.

There is currently no need for warrants and with the US PATRIOT ACT still in effect

there will be no need for warrants in the future. Something needs to be done either

by the public or by our elected officials. It is important to mention that mass

surveillance is nothing new to the people of America it's the capabilities of these

drones that worries me. Never before have law enforcement agencies been able to

peer into someone’s window from the air with little to no detection. It would also

help if there was a separate court system just for surveillance and civilian drones

much like how theirs a court system for the intelligence community known was the

FISA court. Setting up something similar to the FISA courts I think would be a wise

move. With the 2016 election coming up we’ll see how the winning party handles

the issue of domestic drones. Seems both parties, other than Rand Paul, haven’t

taken much of stance for or against domestic drones but I expect that to change as

the election approaches. Law enforcement agencies prefer the use of drones as it

keeps their officers out of harms way and is cost effective but will the public

backlash against drones be enough to stop law enforcement agencies from using

drones more often and more leisurely. This is a question only the future has the

answer to but from the research I’ve gathered I don't see this happening. The

people are already upset over how much America has become a police state and

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introducing more drones will only fuel the fire. I expect a regulation bill to go

through congress before we see local police departments and federal agencies using

drones on an everyday basis. When it comes to our constitution rights there is little

leeway and the usage of surveillance drones with a warrant is a clear violation of

our constitution right to a rightfully search and seizure that can only occur when a

warrant is presented. According to my results, Americans do value their national

security especially after 9/11 but they value their privacy a whole lot more.

Works Cited Page

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Sifton, J. (2012, February 7). A Brief History of Drones; With the invention of drones,

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Fourth Amendment Implications and Legislative Responses. Congressional

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Washington Post

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