News you may have missed: in July 2012, Congress passed—and President Barack Obama went on to sign—the Federal Aviation Administration Reauthorization Act, which authorized the domestic use of pilotless drones by units of government, including intelligence agencies and local police.
A number of police agencies had already been using drones for surveillance (that is, without Hellfire missiles), but when the Obama administration legalized this evermore-powerful technology for use on the home front, Jay Stanley of the American Civil Liberties Union told Forbes that stricter rules were needed because “We don’t want to wonder, every time we step out the front door, whether some eye in the sky is watching our every move.”
Alas, however intently we search the skies right above us, we’ll know very little of how and when we are being drone-tracked. That’s why various privacy organizations—and certain uneasy members of Congress—continue to demand rules to ensure that domestic drone use meets Fourth Amendment standards.
As usual, the most insistent constitutionalist demanding that local, state, and federal governments safeguard our privacy rights in this new era of surveillance is John Whitehead, head of the Rutherford Institute, whose attorneys provide free representation to anyone being stripped of a range of constitutional liberties. But making a case in court against what these drones are actually doing would challenge George Orwell, were he still among us. As Whitehead wrote in an illuminating January 21, 2013, press release: “These drones, some of which are deceptively small and capable of videotaping the facial expressions of people on the ground from hundreds of feet in the air, will usher in a new age of surveillance in American society.”
And dig this: “Not even those indoors, in the privacy of their homes, will be safe from these aerial spies, which can be equipped with technology capable of peering through walls.”
“In addition to their surveillance capabilities,” Whitehead added, police may be interested to hear that “drone manufacturers have confirmed that drones can also be equipped with automatic weapons, grenade launchers, tear gas and tasers.”
A careful researcher, Whitehead has also found certain drone vulnerabilities that can unintentionally make them dangerous. He explained that “There are also a number of safety issues involved with drone technology, with the paramount concern being that drones have a history of malfunctioning in mid-air. Drones are also vulnerable to hackers, allowing unauthorized persons to access information gathered via drone or to take control of the drone’s flight path.”
Are you nervous yet? Ponder this: “Many local police departments throughout the country, including in Florida and California, have already begun utilizing drones in police procedures without any real regulations in place,” Whitehead reported. How convenient for them.
In a further warning on the care needed to avoid summary, dangerously inadequate restrictions on drones, Whitehead warned against adopting “legislation too narrow in scope to have any serious impact on the widespread threat to privacy and civil liberties or providing law enforcement officials with greater leeway to use drones conditioned on their first acquiring court-issued warrants.” Warrants alone will not protect us.
Accordingly, Whitehead provided a model resolution to the General Assembly of Virginia “for limitations on the use of evidence obtained from the domestic use of drones and to preclude the domestic use of drones equipped with anti-personnel devices.” It reads:
WHEREAS the rapid implementation of drone technology throughout the United States poses a serious threat to the privacy and constitutional rights of the American people . . . and WHEREAS the federal government and the Commonwealth of Virginia have thus far failed to provide reasonable legal restrictions on the use of drones within the United States, and whereas police departments throughout the country have begun implementing drone technology absent any guidance or guidelines from law makers:
NOW, THEREFORE, LET IT BE RESOLVED, THAT THE City Council of Charlottesville, Virginia, calls on the United States Congress and the General Assembly of the Commonwealth of Virginia, to adopt legislation prohibiting information obtained from the use of drones equipped with anti-personnel devices designed to harm, incapacitate, or otherwise negatively impact a human being.
Herewith, “A bill to be enacted by the state legislature: the ‘Free-dom From Drone Surveillance Act.’”
To get to the nitty gritty:
No information obtained by the domestic use of Unmanned Aircraft . . . shall be introduced as evidence in courts of this state for any purposes, regardless of what entity, public or private, obtained the information or for what purpose.
To put more teeth into this:
Any persons suffering personal injury or property damage as a result of the prohibited use of an Unmanned Aircraft (aka drone) shall have a cause of action for battery and for the value of property lost or damaged.
The cause of the action may be asserted against all persons who used or authorized (from on high) the use of such Unmanned Aircraft. Whether or not compensatory damages are awarded a person suffering personal injury or property damage, a person suffering personal injury or property damage may be awarded punitive damages up to the statutory maximum for each infraction, as well as the costs of bringing the action and reasonable attorney’s fees.
I’d like to see Virginia’s legislature adopt this bill and to see Congress study it carefully. Thomas Jefferson, Patrick Henry, and James Madison would strongly approve this legislation.
Finally, there is another danger associated with the use of unmanned drones. It was described by Ret. Admiral Dennis Blair, Obama’s first director of national intelligence, who was fired for reasons that may soon become apparent. Blair now charges that the Obama administration has only “partly thought through” the repercussions of its expanded drone attack campaign. “Already dozens of countries from Iran to China are using surveillance drones, and experts believe it will not be long before swarms of armed drones take to the sky. . . . As the technology for arming drones spreads around the world, terrorists could use the unmanned, missile-firing aircraft to attack the president and other U.S. leaders.” Blair added: “I do fear if al Qaeda can develop a drone, its first thought will be to use it to kill our president and senior officers.”
Calls are intensifying for Obama to release the legal justifications for his drone killings overseas, especially of American citizens. According to Blair, would-be drone copiers worldwide will disregard any such concerns. “If a terrorist group gets drone technology,” he declared, “it will use it against us every way they [sic] can.”
Do you think the United Nations would stop them?
Nat Hentoff is a Universal (UClick) syndicated columnist, a senior fellow at the Cato Institute, and the author of numerous books, including Living the Bill of Rights (University of California Press, 1999) and The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2004). His latest book is At the Jazz Band Ball: Sixty Years on the Jazz Scene (University of California Press, 2010). He is currently working on his next book, Is This Still America?