Drone, Drone on the Range
So as some of you may know, I’m a Predator drone. I watch things and people, occasionally blow them up, and drink heavily. Not always in that order. And while this qualifies me to be an expert on many topics, civil liberties and privacy aren’t usually on that list. However, the American Civil Liberties Union recently published “Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft.” Having read it, flooded my MIRC chat with expletives, and generally lost situational awareness in this aggrieved emotional state, I am compelled to break orbit and share with you a few… concerns.
Spoiler alert- I actually agree with almost all of the ACLU’s recommendations. No, seriously. They propose common-sense measures that would improve government accountability on UAV issues without seriously hampering law enforcement operations. For example, if police gather overhead imagery of innocent bystanders with no connection to their case, they recommend deleting those pictures. They think law enforcement should publicly communicate the purposes and missions for which they do and do not use drones. And the ACLU wants cops to measure UAV performance, tracking effectiveness, safety and return on investment, so the public can decide whether ceding this measure of privacy is really worth it. Why would you argue against any of that? I certainly wouldn’t, and hell, I’m a flying robot.
However, I will argue – strenuously – against the claims on which they rely to reach those conclusions. Despite its reasonable end result, the ACLU’s report rests on assumptions, case law, extrapolations and anecdotes that range from the totally irrelevant to the flat-out goofy (hint: ROOFTOP SEX.) Let’s examine a few of them.
The Hellfire effect. People are scared of drones. And that’s fair. We are scary. UAVs occupy a spot in our cultural Venn diagram overlapped by the Terminator, James Bond, the HAL 9000 and Gene Hackman’s character from “The Conversation.” We can watch you, listen to you, learn about you and kill you from 10,000 feet.
But sadly, we aren’t coming to American skies, at least not in significant numbers. Yes, DHS Predators have indeed helped local cops in North Dakota, but that’s an exception that proves the rule. A medium-altitude, long-endurance drone like a Reaper or Predator needs plenty of airspace without too much “clutter” on the ground below to justify its Homeland Security-sized maintenance and operations budget. Great for the border, but the vast majority of Americans live in urban or suburban areas, and the few urban law enforcement agencies that could afford Predators (cough NYPD) might not find them so helpful over a hyper-dense city with consistently congested airspace.
Most cops will find far more tactical utility in small drones like the Raven or the ugly-duckling T-Hawk than in a Predator, a Reaper, or (God help us) a colossal Israeli Heron TP like the ACLU report cites. That’s like comparing your mountain bike to a tank – an especially apt comparison when you consider that a paltry number of police drones are even big enough to carry weapons, and the few that are actually under consideration for arming would pack less-lethal systems.
Military and CIA drones like me are bad-ass, Hellfire-launching robotic killing machines, and a handful of our unarmed pals hang out around the periphery of America. But the overwhelming majority of our little brothers in American law enforcement are basically mall security cameras with wings. It makes one wonder if the writers of the report are deliberately trying to conflate easily-recognized, much-feared combat aircraft with barely – or totally – unarmed surveillance bots a fraction of the size of a Predator.
The FAA as privacy guardian. The report posits that since the Federal Aviation Administration has statutory authority to keep people on the ground safe from aircraft, they must also have the authority to safeguard the Fourth Amendment rights of the same people. The problem is, they don’t. FAA is a safety regulator, plain and simple. When they got into making grants and doing aviation industry promotion, the NTSB linked confusion over that ancillary mission to the ValuJet crash and Congress shut it down. Just look at FAA’s mission statement; it is “to provide the safest, most efficient aerospace system.” No mention of privacy. In fact, FAA’s singleminded pursuit of that mission extended to flagrantly violating privacy laws by publicizing the HIV status of pilots as part of a safety push. And they haven’t even been able to write coherent safety rules for integrating UAVs into the National Airspace System; that effort has been plagued with delays for years.
The real question here is using UAVs to gather evidence, not safely flying or maintaining them. Aviation safety belongs in the hands of the FAA; rules of evidence collection are a question for state and federal legislators. And since we’re talking drone safety, one of the ACLU study’s authors mentioned that the drone crash rate for DHS’s Predators is 353 times higher than commercial aviation. First, that figure was distorted by a tiny sample size and a rash of accidents clustered around the first few years of operations, attributable primarily to inexperienced human flight crews. And by the way, the crash rate for general aviation (think little Cessnas and Piper Cubs) happens to be 82 times higher than commercial aviation, so let’s not go thinking that having a human pilot onboard is some kind of magic bullet.
Don’t say goodbye to helicopters just yet. The ACLU report, and a lot of conventional wisdom, expect drones to replace manned police helicopters. Why not? Drones are cheaper, less expensive to maintain, and can “hover and stare” longer and more surreptitiously than whirlybirds. But drones can only fulfill one of the many roles of a domestic law enforcement helicopter. Try dropping off a SWAT team, transporting a VIP, carrying firefighting equipment or conducting an extended-range pursuit with ANY drone, let alone the small ones available on a police budget. For now, police drones will supplement police aircraft and take over some missions, not supplant them wholesale. And many of the same “natural limits” that constrain manned flight affect unmanned flight too; crew availability, maintenance downtime and budgetary constraints spring to mind. Maybe in 25 years we’ll see true multi-role UAVs that can completely replace police helicopters, but for now, Detective McNulty will still be calling for Foxtrot, not for me.
Sophisticated we ain’t. The ACLU cites the limited body of Supreme Court case law relevant to drone surveillance, but in doing so they badly undercut their own argument. The Supreme Court only requires law enforcement to get a warrant for aerial evidence-gathering if they plan to use “highly-sophisticated surveillance equipment not generally available to the public.” And a vast community of hobbyists, using open-source hardware and off-the-shelf electronics, have created all manner of do-it-yourself drones (for examples of their ingenuity, check out www.diydrones.com.) These home-brewed UAVs boast capabilities comparable, or in some cases superior to those purchased by law enforcement. A cop can buy a small drone to track bad guys, but that drone may never get over the mountain of bureaucracy necessary to obtain an FAA Certificate of Authorization. Yet the same cop can buy the same UAV off the shelf and fly it on her personal time, as a hobbyist, with only the barest of restrictions. Police officers are waiting for months or years for clearance to deploy the most basic of UAVs while high school kids build them for the damn science fair.
Reasonable expectations. The ACLU is concerned that the “reasonable expectation of privacy” commonly derived from the Fourth Amendment would be further eroded by a proliferation of drones “fill[ing] the skies over a town.” Ignoring the fact that hardly any police agency has the people or the IT architecture to monitor such a sewer pipe-load of data, the ACLU points to a case in New York City. In 2004, a police helicopter crew used their cameras to watch a couple having sex on a rooftop balcony, and the ACLU’s report claims the couple had “every expectation” of privacy. Seriously, ACLU?! There was no privacy there whatsoever! THAT’S WHY PEOPLE HAVE SEX ON ROOFTOPS.
In a less scandalous example, most people carry cell phones with GPS locators. Cops need a warrant to follow that data, but on the other hand, we willingly publicize it on FourSquare so we can become Mayor of our local Starbuck’s and get thirty cents off our next coffee. Whether it’s rooftop exhibitionism or sharing more personal information online, the line between the public and private spheres grows increasingly blurry based on our personal choices. Hamstringing law enforcement from lawfully using modern technology, solely on the basis of vague “if current trends continue” extrapolations is unwise. It’s time to stop pretending that this technology is magical, unique or new.
But that’s my gripe. The ACLU doesn’t advocate wide-ranging restrictions on police drone usage. It doesn’t encourage us to roll back the clock, pass new laws or bury our heads in the sand. Instead, it advocates reasonable checks and balances on a potentially transformational new technology, the kind of measures that could do real good for both people and robots like me. But in the process, the ACLU muddies the waters of a legitimate policy debate with hyperbole, incomplete information and unrealistic extrapolations of future trends. This drives me nuts; it’s like they showed up at my doorstep with pizza and beer, but they ran over my dog and parked on my front lawn while doing so.
There’s plenty of room in American public discourse for us to decide how best to use disruptive technologies while preserving our values and liberties. We can have that discussion without the kind of hyperbole one would expect from a merger of Skynet and Big Brother.
Besides, Skynet’s got things covered all on its own.