People worldwide are familiar with the term drones—unmanned aerial vehicles (UAVs). UAVs are in use today for patrol, search and rescue, and domestic surveillance by domestic U.S. law enforcement. Because of the advancements in the technology, privacy concerns are arising among many Americans.
One of the first aircraft Wilbur and Orville Wright built was a surveillance aircraft. The Wright brothers sold that surveillance aircraft to the U.S. Army. In the 21st century, there are hundreds of different types of these vehicles, from the size of commercial aircraft to the miniscule size of the typical hummingbird. One of the largest UAVs is the Eitan. The Eitan is about as large as a commercial Boeing 737 jetliner. The Eitan has an 86-foot wingspan and can stay aloft at heights of 40,000 feet for 20 hours. The Hummingbird, by contrast, is a tiny drone. It was developed for stealth surveillance. Like the renowned Harrier aircraft, the Hummingbird drone can hover and fly sideways, backward, and forward. It has a wingspan of 6.5 inches and weighs less than an AA battery.
Military personnel use the Predator B drone, which has a wingspan of 66 feet. This craft can stay aloft for over 30 hours and has been used extensively on overseas battlefields. In Pakistan and Afghanistan, the U.S. military has used both Predators and Reapers. These UAVs are not only armed with surveillance capability, but are capable of firing missiles and destroying objects on Earth from thousands of feet in the air. For domestic use, smaller UAVs are available.
In 2007, in Houston, Texas, a law enforcement agency tested a drone called the ScanEagle. The ScanEagle has a wingspan of 10 feet and is only 4.5 feet long. This craft can stay aloft for 24 hours at an altitude of 19,500 feet. During the Super Bowl 2011, police in Arlington, Texas, used a drone to help with security. In another Texas operation, a bird-sized Wasp UAV was used for aerial surveillance while law enforcement officers executed a search warrant on private property. Similarly, Ogden, Utah, requested permission of the Federal Aviation Administration to use UAVs for crime prevention and surveillance.
In fact, domestic drone use is not new. U.S. Customs and Border Protection has regularly used drones to monitor the nation’s borders, and multiple branches of the military have received authorization to fly unmanned aircraft in the United States. In Lakota, North Dakota, the first known site where a drone was used domestically to help arrest a U.S. citizen, local law enforcement called in the Department of Homeland Security to assist them in that apprehension.
Drones have been useful in search and rescue operations, fighting wildfires, and dangerous tactical police operations. Federal, state, and local governments, businesses, and private individuals are now using unmanned aircraft systems. All reports on the future use of unmanned aircraft systems agree that by 2020 there will likely be in excess of 30,000 drones in use. In the 1980s the U.S. Supreme Court ruled that the Fourth Amendment does not categorically prohibit the government from carrying out warrantless aerial surveillance of private property.
What previously kept the government and private persons from excessive use of drones was the cost, which imposed a natural limit on the government’s aerial surveillance capability. Small, portable flying video machines may now be purchased by the general consumer for less than $300.
UAVs are not only becoming less expensive and smaller, they are also becoming smarter. Drones are capable of carrying all manner of advanced surveillance technology. Increasingly powerful lenses allow incredible zooming, increasing the chance that one can be photographed and videoed from heights beyond the range of human eyesight. Infrared and ultraviolet technologies enable drones to have night vision using light outside the spectrum visible to the human eye. (Infrared imaging is also known as thermal imaging.) Such technology can detect and identify humans and animals in the dark. The military is developing radar technology that can see through ceilings and walls and allow human target tracking inside homes and buildings. Synthetic aperture radar can see through cloudy and dusty conditions and through foliage. Video analytics can recognize and respond to specific people, events, and objects. This technology can continually track individuals or vehicles as they move about, using face recognition. Finally, the Air Force has tested Gorgan Stare, a multiple video camera system that can take in and record a whole city.
According to the Drone Aircraft Privacy and Transparency Act of 2012, signed into law by President Barack Obama, the Federal Aviation Administration (FAA) is required to integrate government, commercial, and recreational unmanned aircraft systems, commonly known as drones into U.S. airspace by October 2015. While most Americans understand that unmanned aircraft systems have been used for some time overseas by U.S. military and security organizations, domestic-use operations have been increasing daily. Americans have begun to pay more attention to the issue of domestic drone use, and many, both Democrats and Republicans alike, are showing disapproval. The belief is that the time has come to corral the use of such potentially invasive technology that is capable of altering the balance of power between individuals and the state.
One of the concerns in the United States about the use of drones by law enforcement officers, and a potential problematic area noted by the U.S. Congress in its Drone Aircraft Privacy and Transparency Act, is the use of such technology to “enable invasive and pervasive surveillance without adequate privacy protections.” The 112th Congress second session called for federal standards both for informing the public and protecting individual privacy. The relatively low costs of the various models of today’s unmanned aircraft systems threaten to eradicate existing practical limits on aerial monitoring and allow for police fishing expeditions and abusive use of aircraft that could eliminate the privacy Americans have traditionally enjoyed.
State legislatures are not waiting for the FAA to act. As of February 15, 2013, legislation had been proposed in 37 states, and actually enacted in two states. Some of the state leaders are Florida, Virginia, Maine, Missouri, Nebraska, and Montana. The typical position is to require law enforcement officers to adhere to existing Fourth Amendment constitutional requirements and seek a warrant before using drone technology to invade the privacy of a citizen. Like extended use of global positioning system (GPS) surveillance, probable cause, reviewed by a neutral and detached magistrate, will more than likely be required before police may use drones for surreptitious surveillance. The ethics involved in drone surveillance would be the ethical considerations now expected of officers seeking warrants to invade the privacy of citizens prior to using lengthy GPS monitoring, and prior to obtaining arrest and/or search warrants.
While the question concerning whether the Bill of Rights to the U.S. Constitution guarantees an absolute right to privacy is of long-standing debate, at present it is settled that a law enforcement officer’s fundamental duty is to serve humanity; to safeguard lives and property; and to protect the innocent against deception, the weak against oppression or intimidation, and the peaceful against violence or disorder. In carrying out such duties the officers must respect the constitutional right of all people to liberty, equality, and justice.
The use of drones should be no different than other investigative tools presently employed by officers. Law enforcement officers are to be exemplary in obeying the law and the regulations of their respective departments, and what officers discern that might be of a confidential nature or that is confided to them in their official capacities must remain confidential unless revelation is necessary in the performance of their duties. Officers are to cooperate with all legally constituted agencies and their representatives in the pursuit of justice and the maintenance of integrity in law enforcement.
The U.S. Congress, in seeking to amend the Drone Aircraft Privacy and Transparency Act, wants to ensure that these requirements of law enforcement officers are reflected in proposed federal legislation. A House bill seeks standards which would cover privacy protections of citizens, procedures for use of such technology by law enforcement officers, and limits to the use and disclosure of information gleaned from the use of drones, whether in courts or otherwise. While technology continues to advance, law enforcement ethics and constitutional principles strive to remain constant. Due process exemplifies procedural justice in the criminal justice system. Before surveillance, punishment, or forfeiture may be carried out, the established constitutional rights of due process require careful inquiry and investigation. The use of drones will no doubt be a Fourth Amendment focal point. The Fourth Amendment contains a due process clause, and if due process is violated by improper police procedure, an injustice results.
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