While some secret Central Intelligence Agency (CIA) drones may be falling from the sky somewhere as I write, the reliable prospect is that at least thirty thousand drones will be in our skies by 2020—but that doesn’t seem to have aroused any notable anxiety across this land. However, constitutional lawyer and head of the Rutherford Institute, John Whitehead—whom I have characterized as the Paul Revere of government intrusions into our constitutional liberties—reminds us: “The FAA Reauthorization Act, signed into law by President Obama in 2012, authorized the use of drones domestically for a wide range of functions, both public and private, governmental and corporate . . . 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.”
That’s just for openers. Whitehead goes on: “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.”*
Although Dianne Feinstein, head of the Senate Intelligence Committee, has taken on the CIA for disemboweling the Constitution, I do not feel confident that she will confront President Barack Obama and his beloved drones with an impregnable barrier of privacy law. Congress as a whole will not do so either: many of its members apparently regard the Constitution as esoteric.
Instead, we must turn to Whitehead. He has proposed legislation, the Freedom from Drone Surveillance Act, “to provide limitations on the use of evidence obtained from the domestic use of drones.”
He begins with a very necessary preface: “My point is simple, surveillance is surveillance, whether it is carried out by a commercial drone operator using an unmanned aerial vehicle or a government operative relying on sophisticated phone algorithms. As such all Americans—not merely those who are in the public eye—have the right to be free of such invasions of their privacy and incursions on their Fourth Amendment rights.” From now on, voters, regardless of political party, should be demanding that all congressional and presidential candidates agree to this principle.
Whitehead’s proposed legislation requires that “no information obtained by the domestic use of any Unmanned Aircraft (as defined in section 331 of the FAA Modernization and Reform Act of 2012 [49 U.S.C. 40101 note]) shall be introduced into evidence in this state for any purpose regardless of what entity, public or private, obtained the information or for what purpose.”
In a letter to Feinstein, Whitehead used the phrase “in this state” for state-level legislation. But in a later proposed bill with the same title, he called for national-level limitations on the use of evidence from surveillance by domestic drones to be enacted by the U.S. Senate and House of Representatives. This would ban consideration of such improperly obtained “evidence in a Federal court for any purpose, regardless of what entity, public or private, obtained the information or for what purposes.”
Think these standards are too tough? Before you decide, listen to Whitehead a while longer: “Government and various defense contractors are already working on creating micro aviation vehicles, or micro-drones. These drones are modeled after birds, insects, and other small animals with the intention of creating small surveillance devices that can remain hidden in plain view while navigating spaces off limits to conventional aircraft.
“For example, in 2011, DARPA, the advanced research department of the Department of Defense, released its prototype for a ‘Nano Hummingbird.’” As Whitehead told Feinstein: “Shaped like a bird, this drone is neglegibly larger than an actual hummingbird and can fit in the palm of one’s hand. It flits around effortlessly, blending in with its surroundings.”
Imagine George Washington, Samuel Adams, or Benjamin Franklin commenting on the constitutionality of the Nano Hummingbird spying around.
Years ago, I used to read science fiction to be safely scared. But Whitehead—a very careful, prodigious researcher—has topped it with the real thing: “Perhaps the most disturbing development in drone technology, DARPA has even begun to develop a Micro-Electro Mechanical System (MFMS) for the manipulation of insects into ‘cyborgs.’ Through genetic engineering they might actually control the movement of insects and utilize them for surveillance purposes. While the project is still in its infancy, its implications are frightening.”
And DARPA is developing this secretly with our taxpayers’ money. Isn’t that frightening too? We have gone so far beyond George Orwell—yet this isn’t fiction. Whitehead is a very pragmatic Paul Revere, connecting seemingly visionary governmental and corporate surveillance research with plausible future ways of keeping minute track of us.
How do you react to Whitehead’s warning? He cautions: “Keep in mind that the government does not retain a monopoly on these technologies. Eventually, these technologies will be as common and accessible to the average American as a smartphone, which at one time was cutting edge technology available only to the elite within governmental and scientific realms. . . . Unless we put safeguards in place now to ward against abuses by those within government and private sector, we may find ourselves regretting this oversight in years to come when it is too late to do anything about the fact that we are overrun by privacy abusers.”
“Being overrun” might even include largely invisible searching insects sent by hostile neighbors from across the street.
What we could well use now are more Snowdens, principled “leakers” within the government and corporate sectors. These insider, patriotic informers will find Whitehead, Glenn Greenwald, and others in the media who will get them an audience. They will be heard by some in Congress and local legislatures—and yes, importantly, in schools around the nation.
Justice William Brennan once told me: “From the First Amendment, all our liberties flow.” The First Amendment should also be able to defend us from insects turned into cyborgs monitoring us.
*“Rutherford Institute Calls on Sen. Dianne Feinstein to Take the Lead in Calling for Federal Drone Legislation to Protect Privacy Rights of All Americans,” rutherford.org, March 28, 2014.