Government Surveillance And Domestic Drones: Privacy At Stake?

By: Kelsey Bleiweiss, THELAW.TV

In today’s world of rapidly evolving technology and the ever-present fear of terrorism, government surveillance is a major arena of public debate. Technological developments over the last decade or so have rapidly transformed the way the government approaches the War on Terror, and as most Americans know, one controversial aspect of anti-terrorism activity is the use of drones.

“Drone” is something of a buzzword in politics today – tune into any news channel or open any newspaper and there is almost guaranteed to be a piece about drone use. But what exactly is a drone? And why do drones – which are most frequently discussed in terms of the “War on Terror” – have privacy advocates and civil liberties organizations up in arms at home?

According to Scientific American, a drone is “an unmanned aircraft that can fly autonomously.” In other words, it is any aircraft that can operate without a person operating it on board. This sounds simple in theory, but the wide variety of unmanned aircrafts available today complicates the classification of drones, creating difficult questions about government policies. If, for example, a policy restricting usage applies only to non-drone aircrafts, a governmental entity may try to classify an aircraft as a drone in order to skirt those rules.

Drones were created (and are still for the most part used) for surveillance purposes abroad. High-power cameras attached to these unmanned aircrafts allow the armed forces to obtain intelligence without putting a soldier or agent at risk. But drones have also been equipped with the capacity to open fire on suspected terrorists (and innocent civilians) in so-called “drone strikes”, raising troubling questions about the ethics and legality of such policies and the nature of war today.

One particularly difficult issue surrounding drone strikes is the use of them to target and kill American citizens suspected of terrorist activities abroad. This occurs through an extrajudicial process in the Executive’s Justice Department, which prompts serious concerns about the Fifth Amendment guarantee of due process.

And there is a great deal of uncertainty about how the Justice Department makes these determinations. As NBC News recently discovered in a confidential memo from the Justice Department, the government can order attacks “even if there is no intelligence indicating that [the citizen is] engaged in an active plot to attack the U.S.” The standard of proof required to kill an American citizen through a drone strike is thus unclear.

The targeted killing of Americans is certainly not the only question in the drone debate. Another major concern is the potential for other countries to develop the same technology and – perhaps more problematically – to use the same degree of secrecy and legal uncertainty in their policies with those technologies.

But within the last year the drone debate has expanded into the domestic sphere, potentially affecting all Americans. In February 2012 President Obama signed a bill opening American airspace to “unmanned aircraft systems,” or drones. This means that the drones that are used for surveillance in foreign wars can now be used at home, both publicly and privately.

This decision prompted a great deal of backlash from privacy advocates. The major concern for domestic drones is that the government will use them to invade the privacy of American citizens in ways that were never before possible.

The ACLU released a report in December 2011 expressing these concerns, including how domestic drone use “threatens to eradicate existing practical limits on aerial monitoring and allow for pervasive surveillance, police fishing expeditions, and abusive use of these tools in a way that could eventually eliminate the privacy Americans have traditionally enjoyed in their movements and activities.”

The privacy “traditionally enjoyed” refers to Fourth Amendment protections against unreasonable searches and seizures. These protections have been limited by the Supreme Court of the United States over the years, like in California v. Ciraolo, which held that evidence obtained by police from an airplane without a warrant could be used in court because the evidence could be seen by anyone in a plane. This reasoning is complicated by the use of drones, however, as evidence obtained with the aid of a drone would not technically be visible to a person since the aircraft is unmanned. This is just one example of the kinds of questions that will emerge with the domestic use of drones.

Citizens across the country seem to be aware of the potential privacy invasions that could result from drone use in their areas. A recent effort by the Seattle Police Department to use two drones obtained through a federal grant was quickly shut down after residents protested, and last week the Charlottesville, Virginia City Council became the first city to pass anti-drone resolution.

Finally, many civil rights advocates are concerned with the government using drones to further discriminate against citizens based on race and ethnicity, a practice the ACLU alleges occurs through the FBI’s “mapping” of the nation based on stereotypes about which groups of people commit which crimes.

Though the debate over drones has dominated the foreign affairs conversation for a decade, it seems clear that drones will soon become central to the question of the relationship between the government and the American citizen.

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