In 2011 the ACLU in a report wrote, “Unmanned aircraft carrying cameras raise the prospect of a significant new avenue for the surveillance of American life.” As the report noted, “Aerial surveillance from manned aircraft has been with us for decades… But manned aircraft are expensive to purchase, operate and maintain, and this expense has always imposed a natural limit on the government’s aerial surveillance capability. Now that surveillance can be carried out by unmanned aircraft, this natural limit is eroding.”
Catherine Crump and Jay Stanley of the ACLU wrote in Slate Magazine, “Of all the threats to privacy that we face today, why have drones caught the attention of the American public to such a remarkable degree? One possibility is that there’s something uniquely ominous about a robotic ‘eye in the sky.’ Many privacy invasions are abstract and invisible—data mining, for example, or the profiling of Internet users by online advertisers. Drones, on the other hand, are concrete and real, and the threat requires no explanation.”
But they argue that drones are more than just “the most visible example of a host of new surveillance technologies” – rather, they “have the potential to fundamentally alter the balance of power between individuals and the state.”
This is not just a liberal-conservative debate, either. The Republican Party in 2012 had a platform that stated, “We support pending legislation to prevent unwarranted or unreasonable governmental intrusion through the use of aerial surveillance.”
The ACLU has been working at the state and local level to help address these concerns. Ms. Crump and Mr. Stanley note, “The American public and our elected representatives can, for once, get ahead of the deployment curve—we can raise awareness, propose protections, and build support for them before the problems hit us in the face. If done right, this moment of hyperawareness about privacy could become a more permanent state of affairs.”
While working at the state and local level has brought some good results, they argue, “Ultimately, the best solution on drones would be for Congress to pass strong, uniform rules protecting everyone across the nation and putting privacy concerns to rest.”
For example, there is concern that the availability of drones and their ease of deployment will make them “general tools of surveillance.” Instead, they argue, law enforcement and government agencies should “utilize them only where they have a specific reason to believe that use of one will turn up evidence of criminal activity.”
Along these lines, the ACLU recommends the following safeguards:
USAGE LIMITS: Drones should be deployed by law enforcement only with a warrant, in an emergency, or when there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific criminal act.
DATA RETENTION: Images should be retained only when there is reasonable suspicion that they contain evidence of a crime or are relevant to an ongoing investigation or trial.
POLICY: Usage policy on domestic drones should be decided by the public’s representatives, not by police departments, and the policies should be clear, written, and open to the public.
ABUSE PREVENTION & ACCOUNTABILITY: Use of domestic drones should be subject to open audits and proper oversight to prevent misuse.
WEAPONS: Domestic drones should not be equipped with lethal or non-lethal weapons.
Without such safeguards, the government could engage in the “abusive use of these tools in a way that could eventually eliminate the privacy Americans have traditionally enjoyed in their movements and activities.”
That is the basic problem. Earlier this week, there was some discussion about the expectation of privacy. Generally speaking, in public, we don’t have an expectation of privacy. On the other hand, should the government be able to track our movements on the off chance that we might be engaging in an unlawful activity?
Yes, I understand that there are surveillance cameras everywhere, but there is a difference between a private company having a video camera to protect their property and premises, and the government using the data to track the movements of otherwise law abiding citizens.
I don’t buy into the belief that if you are doing nothing wrong, you have nothing to fear.
One example is the case of Brandon Mayfield. On May 6, 2004, the FBI arrested Mr. Mayfield, an attorney in Oregon, and held him for over two weeks on suspicion of being connected to the Madrid bombing, after investigators matched Mr. Mayfield’s fingerprints to fingerprints on a bag containing detonating devices discovered by Spanish authorities.
They erred in their assessment, which would force forensic investigators to re-think how fingerprint matches are identified. The FBI clearly erred in how it chose to handle the case, as well as in its identification of Mr. Mayfield, but this illustrates the point of having access to technology and data without safeguards and limitations.
The technology can be used to imply guilt where none exists. As investigators accumulate data on a particular subject, there are times when confirmation bias colors their analysis and the investigators see only the data points that confirm their theories and discard analysis that undermines it.
That was one problem that occurred in New York in 1989, when the rush to determine who had raped and assaulted a woman in Central Park led police to immediately zone in on five youths and, in the process, they ignored real evidence that would have exonerated the kids.
I have used enough video in my work with the Vanguard to recognize that sometimes the video will not pick up the full picture. Where the video from a drone might show some things, it may miss other important evidence.
Sports fans might want to consider the use of video replay in football or baseball – despite multiple camera angles, there are plays where video evidence is not conclusive on key plays. They have set the bar high for overturning the call of a human official – the video evidence must be clear and indisputable. More often than not, the ruling ends up being that the play stands as called, as the video evidence is not enough to conclusively determine one way or another.
And that is with multiple camera angles shot by human operators who are trained to follow the ball and the play.
The ACLU rules are actually fairly solid – they allow surveillance as a tool, but force the law enforcement agency to use them as tools to aid in a specific investigation, rather than a broad fishing net to see what they catch.
Building those safeguards into place may prevent more wrong accusations or worse yet, wrongful convictions.
—David M. Greenwald reporting