As the weekly – sometimes daily – news stories never tire of telling us, domestic drones are coming. And as ABC News reported on March 17, they are arriving faster than the Federal Aviation Administration (FAA) can suss out the rules over their use. Though it’s technically illegal, and the FAA may issue fines if they catch you, ABC reports that commercial use of drones is starting to happen whether or not the government approves – as long as it doesn’t notice.
In February, the FAA sent a cease and desist letter to the Lakemaid Brewing Company – the beer makers may not use drones to send ice fishermen a six-pack of cold ones. Even for such a charming purpose, their commercial use is banned at least until 2015, when the FAA will issue rules on drone integration into U.S. airspace. The FAA is also currently appealing a judge’s decision rejecting the $10,000 fine it tried to levy against a Virginia filmmaker for unauthorized drone flights. At this point, the US is actually trailing far behind the rest of the world in terms of domestic drones – we’re skittish about their dystopian potential, and our privacy laws are (relatively) strong compared to some.
As scary as drones seem, as much as something needs to be done about them before it’s too late, we have to ask whether letting the FAA shutdown overeager companies and individuals is going to solve the big problems with their use. Will making the possibility of journalism drones, firefighting drones, search-and-rescue drones more difficult magically elect government officials who can be trusted not to use them for 24/7 surveillance? Caution in legislation isn’t a bad idea, because people want to do something, and they may just flail in the direction of any anti-drone law suggested by dodgy politicians.
Even state-friendly officials like Sen. Dianne Feinstein (D-Calif.) are nervous. Not exactly a bunker-dwelling libertarian, Feinstein is very keen on regulating drone use after she was reportedly scared by a toy version of one sent outside her window by the antiwar group Code Pink. (If annoying Dianne Feinstein isn’t an argument in favor of loose drone laws, nothing is.) Last year brought a flurry of anti-drone legislation, with 43 states considering it, and nine putting their concerns into law. Promisingly enough, those nine states’ laws dealt with restrictions on governmental use of drones. Only three states restrict private use of drones.
Drones have been a boon for the Obama administration, in that they’re a relatively cheap way to keep a constant, menacing presence in countries with which the US is not at war. They also psychologically torture people in Pakistan, and kill many more innocent people than the US government admits. The government also uses metadata and SIM cards from cell phones to track their targets who may not be the original target. Sometimes to be counted as a terrorist killed, you need only be a male of a certain age killed in a certain area. In short, though they’re "better" than a full-on invasion, so far there is a very good reason why drones have had a bad reputation. But it’s easy for Americans to tune out the horrors they pay for abroad. It is going to feel more personal when they come home.
And their domestic use is happening more and more. There are ten drones patrolling the borders with Mexico and Canada. And the Electronic Frontier Foundation (EFF) found in January that that Customs and Border Patrol (CBP) loaned its drones to other agencies even more than EFF had originally reported – over 700 flights in three years, with drones loaned to the Drug Enforcement Administration (DEA), Immigration and Customs (ICE), the FBI, and various state agencies. The drones have so far had myriad technical issues, and are not yet deft enough in their surveillance to do things like recognize faces or act without human eyes. But there’s no reason not to think that won’t eventually be all too possible. There have already been some disturbing test runs of drones with new, powerful cameras, including one over Dayton in June, 2013. Should that be legal? How do we decide?
A handful of police departments have begun to use drones, though they too need special permission from the FAA. (A lot more have applied for permission to use them in the future.) A Predator drone, borrowed from CBP, was used in June 2011 to find suspected cattle thieves in North Dakota to much media attention (though the actual arrest was handled by humans). It is likely they will be used more for that kind of endeavor in the future. This is a reason to worry.
The Fourth Amendment’s privacy protections have been weakened by the wars on drugs and terror, but also by the slowness of bureaucracy in the face of technology. Understanding that your "papers" are protected from "unreasonable search and seizure" is easy enough in 1791. What that means in a world of phones, cars, emails, and even airplanes is another matter for courts to endlessly debate. The Supreme Court could have been worse in this regard, but it has still upheld the government’s right to search properties from airplanes and helicopters at a height of 1,000 or 400 feet respectively without a warrant. With the possibility of drones that stay in the air almost nonstop, and more and better facial recognition and surveillance technologies that may eventually not need a human being in order to track movement, there will be some enormous Constitutional questions on the horizon when it comes to drones. And the drones may move faster than the legal system.
As eerie as our future sometimes feels, the way to survive in a world where drones will not be un-invented, no matter how much we may wish it, is not necessarily to restrict their use by force of law. If drones are outlawed, odds are cops and government officials will be the ones managing to find loopholes in those laws. (They may even advocate for them, like cops who support gun control for civilians.) Small beer breweries, independent journalists, and antiwar activists are the people we should trust to use drones in the right way. The government and the police are the ones who need their wings clipped by legislation.
Lucy Steigerwald is a contributing editor for Antiwar.com and a columnist for VICE.com. She previously worked as an Associate Editor for Reason magazine. She is most angry about police, prisons, and wars. Steigerwald blogs at www.thestagblog.com.