Debating Drones: Final panel from Yale Law School conference

SCOTUSBlog contribuor Nabiha Syed and ACLU attorney Catherine Crump spoke on drones at a brief, final session of the March 3 Location Tracking and Biometrics Conference at the Yale Law School.

Syed argued that drones are the culmination of all other electronic privacy issues. She traced the idea to Jon Silva in 1956, a TV broadcaster who wanted more market share and realized Los Angeles PD had copters to watch traffic. He rented a helicopter from the Army, mounted 2,000 pounds of camera equipment onto it, and in 1958 launched the first traffic helicopter. LAPD now has largest fleet of traffic helicopters in the nation. She cited Silva's innovation ans an example of how it's not always obvious how private sector affects law enforcement. Broadcasting from a helicopter is mobile, happens in real time (think: O.J.), is airborne, and can capture images beyond where a person can go on land.

There are ways drones are different. First, they're unmanned. Instead of pilots incidentally seeing what's going on, capturing images is their purpose for news organizations. Second, you won't know drones are there compared to helicopters because they're quiet and often relatively small. Third, and perhaps most importantly, is the lower cost. You can buy large drones for $20,000 that fly for 1,600 hours, but smaller ones are operated by tinkerers, private companies and public institutions. The FAA has prohibited commercial use of drones till 2015. but they're already used for lots of things and the FAA does nothing about it, including using drones for news gathering: Even if drones aren't technically legal, there's no real way for the cops to stop it. She mentioned the Drone Journalism Lab, which focuses on the “expressive use of drones” We will see unconventional use of drones, said Syed, which will initially involve a variety of uses by third parties with no legal infrastructure to guide them.

Crump argued that there are beneficial uses of private drones. ACLU is putting out white paper later this year grappling with the First Amendment issues. The debate over drones, she said, highlights why "privacy advocates need to win every battle about tracking and government only needs to win once." We've not previously seen technology inspire as much opposition as drones, she noted. Why is that? First, the default setting is different. The public doesn't know they're being used until they've already been integrated into law enforcement practices. Most metropolitan police already have many cameras around town, but unlike CCTV affixed to a lamp post, drones can follow you around.

The FAA has largely prohibited use of drones so far, putting the onus on those who want to use them to make a case for them. For once, that gives us a chance to have a debate up front, reminiscent of the Swiss system. (She was referring to an example from an earlier panel: Police in Switzerland can't engage in surveillance practice until the legislature has regulated it. The United States, by contrast, has the opposite system: Police can do virtually anything until they're stopped.)

The public has mainly seen them in war footage from Afghanistan and Pakistan. TV likes them because they produce good video. Opposition so far has primarily come from conservatives. Drones were addressed in many state GOP platforms and 29 states have introduced drone legislation. Some states want warrant requirement. In a 2011 report, ACLU argued for “reasonable belief” standard for drone use, while the Tea Party mostly wants probable cause warrants. Law professor Ryan Calo has called drones the leading edge of privacy movement.

These issues are mostly being confronted at the state level, not by the feds. Crump thinks  maybe the "privacy community" (whatever that is) is making a mistake by focusing on feds, suggesting advocates should target 10-15 states to pass model legislation. The key constitutional questions surrounding drones relate to First Amendment questions and the third-party doctrine exception to the Fourth Amendment, she said, as the day drew to a close.

In the Q and A session, Kevin Bankston of the Center for Democracy and Technology recommended the fiction book,“Kill Decision,” on autonomous drones integrated with facial recognition and other privacy invading tech.

See prior Grits posts from the conference:

• Cell phone tracking by government: How it's done
• On the Fourth Amendment implications of location tracking
• Secrecy and federal court dockets: On the nuts and bolts of authorizing government surveillance
• Bypassing the telecoms: 'Stingrays' allow direct government phone surveillance with little oversight 
• Biometrics and profiling: The door to the phone booth is now open
• Video, resources from location tracking conference

And, see prior Grits drone-related coverage:

• Droning on: US Senate, Texas House struggle with regulating unmanned aircraft
• Fourth Amendment and Privacy Roudup: Good drone, bad drone
• 101 House members endorse criminalizing warrantless drone photography
• Houston hearing hones in on use of drones by law enforcement
• Texas Congressman pushing restrictions on law enforcement's use of drones without a warrant
• Montgomery Sheriff crashes drone into SWAT vehicle
• The newest toys in the box: Police deploy cell-phone trackers, drones