Drones and privacy

(Posted on behalf of Steve Hays on behalf of David Gadbois.)

Here are a few of my thoughts on the recent criticisms of the increasing operations of unmanned aircraft conducting surveillance in U.S. airspace. I came across this article. That's a photo of a Predator B UAV in the Department of Homeland Security/Border Patrol's livery at the top of the article. Other conservative and libertarian pundits that I respect, such as Charles Krauthammer, have made similar criticisms as Mr. Cooke. And I notice that a lot of folks outside of my work have expressed their concerns to me personally on this issue in the past few weeks. I don't know where your political sympathies lie on privacy issues, but here is my take.

All of the information I mention here is public knowledge.

1. While I do work for an unmanned aircraft manufacturer, at this time sales to domestic law enforcement make up a very small fraction of the UAV market. The U.S. and foreign militaries are still the biggest customers in the market by far. I'm not particularly worried that this issue would affect my livelihood one way or another.

2. I think I have fairly good street cred (amongst those who know me) as a small-government guy, residing in a political orbit somewhere between National Review (conservative) and Reason (libertarian) magazine. I'm generally wary of government overreach, especially by the federal government in breach of its constitutional limitations.

3. Technical issues

   That being said, I'm not sure why people consider unmanned aircraft to be fundamentally more intrusive than manned aircraft that routinely fly and surveil in national airspace. Most current UAV systems are operated by a pilot and sensor operator in a ground station, connected either via line-of-sight or satellite wireless data links. The police-operated helicopters and fixed-wing aircraft that have been around for decades likewise require a pilot and camera/spotlight operator for the routine law enforcement operations that most don't object to. Very few UAV systems are autonomous (i.e. don't require pilots in the loop).

   The main driver behind law enforcement's adoption of unmanned systems is cost. It is simply cheaper to have unmanned aircraft as your eyes in the sky per hour vs. a manned aircraft. The only relevant operational advantage of UAVs (that I can think of) is the fact that they tend to be harder to detect audibly or visually (especially when compared to conventional helicopters), but this is not an inherent advantage. For aircraft that share roughly the same gross weight and flight envelope, one can design a manned aircraft to operate as silently as, say, a Predator UAV, and with a similar visual footprint.

   There are, however, classes of UAVs that are smaller than classes of aircraft that would be sizeable enough to conceivably carry humans. These are usually referred to as micro-UAVs. Even smaller craft exist (think hummingbird size), and are known as nano-UAVs. However, the performance and utility of optical sensors diminishes as you scale down to sizes that can be flown on these platforms. The level of capability varies wildly given different sizes and classes of aircraft and corresponding payloads, and I'm not sure what specifically most people picture as being an insidious threat to their freedom.

   Mr. Cooke is concerned that UAVs can provide footage with similar detail as the CCTV cameras that are prevalent in Britain, but that surely isn't right. A UAV loitering at several thousand feet in altitude simply cannot provide this kind of resolution. I haven't seen any classified or proprietary footage, but all of the video I have seen from Predators is only clear enough to identify the presence and general behavior of men on the ground. You could discern that someone is planting an IED, for instance, but you would never get a facial recognition. One could more plausibly raise a constitutional objection to certain uses of infrared sensors (that can image the thermal signatures of humans and provide a general, silhouetted shape), as those are capable of seeing through the walls and ceilings of homes and other buildings. But again, law enforcement has had that capability on manned platforms for many years, so it is hard to see how the situation with unmanned aircraft is fundamentally different. Who cares if this is being done from a Cessna as opposed to a Predator?

   One could rightly point out that some UAV platforms, in the micro or nano class, can and do operate at altitudes of dozens or hundreds of feet rather than thousands, but these become easy to detect at such close ranges, and as mentioned their smaller sizes limit the performance of their optical payloads. There are fundamental limitations in play- the laws of physics as pertains to optics give an upper bound of the performance of any optical device of a given, fixed size.

4. Moral and constitutional issues

   I think some of my civil libertarian friends are seeing "emanations", "penumbras", and other hallucinagenic artifacts in the Bill of Rights that simply aren't there when they assert that the 4th Amendment provides a general right of privacy. The idea that there are restrictions and requirements on how the government may conduct search and seizure is conceptually much more narrow. Perhaps there is a moral case to be made that there ought to be a legal right to privacy, but that ought to be debated in a democratic society and established either by amendment to the constitution or else via conventional legislation passed in Congress. Any amount of serious reflection on the issue would reveal that it would be very difficult to define the nature of (and limits of) a general right to privacy with sufficient philosophical and legal precision and rigor. Also, as a Christian, I cannot think of a biblical principle that would necessarily underwrite an individual right to privacy in relation to the government, so if this right exists I would have to put it into a subservient category of rights (such as "no taxation without representation"), in other words, it would not be a fundamental moral right, even if important.

   Concerning the 4th Amendment, even the most restrictive reading of the text would certainly not prohibit the operation of an unmanned aircraft for the purpose of surveillance per se, it would only require that a warrant be obtained on the basis of probable cause to authorize its use. This seems to be the aim of Rand Paul's bill that requires a warrant prior to the deployment of a UAV, qualified by a handful of exceptions (and, sadly, employing the morally ludicrous exclusionary rule).

   I'm no lawyer, but it seems to me that mere observation and photographic documentation of a person in a public place does not constitute a "search" of his person or intimate possessions, and as such aerial surveillance does not inherently constitute a search that is subject to the amendment at all. The situation gets a little stickier if the person being observed is on his own (or someone else's) private property, but if the person is in an "open field" (i.e. not in a home structure or, perhaps, the curtilage) then they are subject to search under the Open Fields doctrine. I don't know enough to say how legitimate this principle is constitutionally speaking, but it was codified by the Supreme Court's interpretation of the 4th Amendment in 1924 (Hester v. U.S.).

   More interesting is the school of thought that contends that searches are permissible without a warrant as long as they are "reasonable". No less a light than Judge Scalia has advocated this view, thus placing more emphasis on the first clause of the Amendment. Others put more weight on the second clause (the Warrant Clause), insisting that warrants are always required barring only a few exceptions. Interestingly, I consulted the Heritage Guide to the Constitution, and it mentions both views without explicitly endorsing either:

   Until recently the Supreme Court said that warrants were required for all searches and seizures, save those that fell within some exception to that requirement....Today, the Court uses different language, emphasizing not the second half of the Fourth Amendment's text, but the first (the ban on "unreasonable searches and seizures"). See Indianapolis v. Edmond (2000)

   Even Richard Epstein remarks:

   The amendment speaks with a forked tongue. On the one hand, it is clear that the right of all people to be "secure in their persons" looks as though it is "violated" by either pat-downs or body scanners. On the other hand, the use of the law’s most indispensable weasel word, "unreasonable," suggests that only some searches are "unreasonable," leaving it to the fine art of constitutional interpretation to decide which ones those are....That pesky word "unreasonable" has worked its way into our constitutional heritage through the text of the Fourth Amendment. We are thus duty-bound to make sense of it by asking what kinds of searches the government can properly undertake.

   In my view, the grammar and syntax of the Amendment establish a prima facie reading of the text that understands the first clause as having independent meaning from the second clause. In other words, I would side with Scalia's view that there is such a thing as a "reasonable search" that would not require a warrant (as opposed to the view that the first clause is merely a preamble that justifies second clause [the Warrant Clause]). It might be that the language of the 4th Amendment underdetermines the issue, and ought to be amended and clarified one way or the other.

5. In saying these things I do not deny that unmanned aircraft can be potential tools to facilitate government overreach, abuse, Big Brotherism, anti-constitutional encroachments, or outright tyranny. And yes, if there is a drone hovering ten feet outside of your house, peering into your bathroom window with its camera, I would consider it morally to be intrusive, reprehensible, as well as an abridgement of the 4th Amendment's protections. You can make a slippery slope argument if you wish, but this is simply not the situation we are in at present by merely allowing UAVs to aid in domestic law enforcement operations. The existence of a tool, that can admittedly be used for good or evil, does not automatically plunge us in to Orwell's 1984. And if the tool is not intrinsically evil, on what basis can we impose a blanket prohibition?