By Paul Rosenzweig, The George Washington University Law School
Drones are not an inherently limited technology; they don’t come with a technological ‘off’ switch, which says use the data only for good purposes. Read to know about the other more problematic applications that might arise with their usage.
Surveillance by Drones
Before deciding to use drones for surveillance, there are some questions we might want to think about from privacy and civil liberties perspectives, leaving aside, for the moment, constitutional concerns.
What permissible uses of imagery and analysis collected from the surveillance drones should be allowed for? And, with whom may the information be shared? For how long should the data be retained? Can we make available any collateral information—for policing functions, say—unrelated to the target of the surveillance?
These are hard questions, and, honestly, the society as a whole doesn’t have a lot of answers yet. Even as drone applications proliferate, rules on their use—and boundaries that should apply—remain very unclear.
Learn more about surveillance in America.
Plain View Doctrine
Let’s imagine that while on patrol for counter-terrorist purposes, a drone spots images that might convey a drug deal. Or they could be just pictures of two guys meeting in the woods. Should the analysts who collect this data share it with the local police department?
On the one hand, the answer seems clearly to be yes. We don’t want government officials to turn a blind eye during the course of their duties to a crime they happen upon.
The Fourth Amendment would likely be no legal barrier to sharing the information. The Fourth Amendment prohibits unreasonable searches and seizures.
In the context of the regulation of police activities, we sometimes define reasonableness by what is called the plain view doctrine; that is, the idea that if the police are lawfully in a place for one purpose, then evidence of other crimes they see in plain view is fair game.
Their actions in being there are reasonable, so the result of their observation is lawful, wherever the evidence may lead them. The classic example of this is when the police respond to a call reporting, say, domestic violence, and lawfully enter a house only to see narcotics or a marijuana plant in plain view.
In our scenario, if the drone’s surveillance were lawful in the first instance, we might, by parallel reasoning, conclude that we should not turn a blind eye to the evidence of a potential drug deal—or a rape, or a robbery—that’s also observed.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
Protection of Civil Liberties
On the other hand, there’s an awful good argument for the answer to be no. One way in which we limit government activities that impinge on civil liberties is through use limitations; that is, the idea that information and data collected for a specific use can only be used for that particular purpose.
We’re all familiar with this type of limitation. Everyone knows, for example, that only the Census Bureau can use personally identifying census data, and that it isn’t generally shared with other offices of the government. The same is true—with some limited exceptions—for tax filings and health data.
The government collects the information for a specific purpose, and in order to encourage complete honesty, promises not to use it for other reasons. And that makes sense in this context, doesn’t it? We might approve a use for valid counter-terrorism purposes, but we might not authorize the same intrusion for a run-of-the-mill crime.
Of course, drawing lines between crimes is hard.
Learn more about the tension between surveillance and the rule of law.
Possible Regulations for Use of Drones
There are some other limitations that we might consider for drones.
The use of drones in a military capacity, while armed, should be severely restricted to situations of actual invasion or insurrection. The use of drones for domestic surveillance of First Amendment activity—that is, freedom of speech and freedom of assembly—should be considered fundamentally at odds with U.S. constitutional principles and prohibited.
Drones equipped with novel sensor arrays—like, say, a new facial recognition technology—would not be permitted, absent a clearly demonstrated need and a careful consideration of countervailing privacy and civil liberties concerns.
Drones would not be used as a platform for the collection of massive, unstructured data sets—say, the long-term surveillance of an entire community that’s a high-crime area—because that type of collection could form the basis for sophisticated tracking and behavioral analytics, and drones would be considered unsuitable for use as a routine means of surveillance in non-threatening situations.
For all of these ideas, value judgments and choices need to be made, so Congress has to be engaged. After all, these are interesting, difficult, and indeterminate choices we will be making. Technology and the law need to be harmonized to ensure that the state remains secure and its people remain free.
Common Questions about Drones
In the context of the regulation of police activities, the plain view doctrine states that if the police are lawfully in a place for one purpose, then evidence of other crimes they see in plain view is fair game.
Use limitations is the idea that information and data collected for a specific use can only be used for that particular purpose.
We limit government activities that impinge on civil liberties through use limitations. For example, only the Census Bureau can use personally identifying census data, and it isn’t generally shared with other offices of the government. The same is true for tax filings and health data.