Pri­vacy is­sues hover over po­lice drone use

Do­mes­tic sur­veil­lance is the next fron­tier for un­manned air­craft

The Washington Post Sunday - - FRONT PAGE - BY PETER FINN

austin — The sus­pect’s house, just west of this city, sat on a hill­top at the end of a steep, ex­posed drive­way. Agents with the Texas Depart­ment of Pub­lic Safety be­lieved the man in­side had a large stash of drugs and a cache of weapons, in­clud­ing high-cal­iber ri­fles.

As dawn broke, a SWAT team wait­ing to ex­e­cute a search war­rant wanted a last-minute aerial sweep of the prop­erty, in part to check for un­seen dangers. But there was a prob­lem: The depart­ment’s air­craft sec­tion feared that if it put up a heli­copter, the sus­pect might try to shoot it down.

So the Texas agents did what no state or lo­cal law en­force­ment agency had done be­fore in a high-risk op­er­a­tion: They launched a drone. A bird-size de­vice called a Wasp floated hun­dreds of feet into the sky and in­stantly beamed live video to agents on the ground. The SWAT team stormed the house and ar­rested the sus­pect.

“ The nice thing is it’s covert,” said Bill C. Nabors Jr., chief pi­lot with the Texas DPS, who in a re­cent in­ter­view de­scribed the 2009 op­er­a­tion for the first time pub­licly. “You don’t hear it, and un­less you know what you’re look­ing for, you can’t see it.”

The drone technology that has rev­o­lu­tion­ized war­fare in Iraq, Afghanistan and Pak­istan is en­ter­ing the na­tional airspace: Un­manned air­craft are pa­trolling the border with Mex­ico, search­ing for missing per­sons over dif­fi­cult ter­rain, fly­ing into hur­ri­canes to col­lect weather data, pho­tograph­ing traf­fic ac­ci­dent scenes and track­ing the spread of for­est fires.

But the op­er­a­tion out­side Austin pre­saged what could prove to be one of the most far-reach­ing and po­ten­tially con­tro­ver­sial uses of drones: as a new and rel­a­tively cheap sur­veil­lance tool in do­mes­tic law en­force­ment.

FAA au­tho­riza­tion

For now, the use of drones for high-risk op­er­a­tions is ex­ceed­ingly rare. The Fed­eral Avi­a­tion Ad­min­is­tra­tion — which con­trols the na­tional airspace — re­quires the few po­lice de­part­ments with drones to seek emer­gency au­tho­riza­tion if they want to de­ploy one in an ac­tual op­er­a­tion. Be­cause of con­cerns about safety, it only oc­ca­sion­ally grants per­mis­sion.

But by 2013, the FAA ex­pects to have for­mu­lated new rules that would al­low po­lice across the coun­try to rou­tinely fly light­weight, un­armed drones up to 400 feet above the ground— high enough for them to be largely in­vis­i­ble eyes in the sky.

Such technology could al­low po­lice to record the ac­tiv­i­ties of the pub­lic be­low with high-res­o­lu­tion, in­frared and ther­mal-imag­ing cam­eras.

One man­u­fac­turer al­ready ad­ver­tises one of its small sys­tems as ideal for “ur­ban mon­i­tor­ing.” The mil­i­tary, of­ten a first user of tech­nolo­gies that mi­grate to civil­ian life, is about to de­ploy a sys­tem in Afghanistan that will be able to scan an area the size of a small town. And the most so­phis­ti­cated ro­bot­ics use ar­ti­fi­cial in­tel­li­gence to seek out and record cer­tain kinds of sus­pi­cious ac­tiv­ity.

But when drones come to perch in num­bers over Amer­i­can com­mu­ni­ties, they will drive fresh de­bates about the bound­aries of pri­vacy. The sheer power of some of the cam­eras that can be mounted on them is likely to bring fresh search-and-seizure cases be­fore the courts, and con­cern about the technology’s po­ten­tial mis­use could un­set­tle the pub­lic.

“Drones raise the prospect of much more per­va­sive sur­veil­lance,” said Jay Stan­ley, a se­nior pol­icy an­a­lyst with the Amer­i­can Civil Lib­er­ties Union’s Speech, Pri­vacy and Technology Project. “We are not against them, ab­so­lutely. They can be a valu­able tool in cer­tain kinds of op­er­a­tions. But what we don’t want to see is their per­va­sive use to watch over the Amer­i­can peo­ple.”

The po­lice are likely to use drones in tac­ti­cal op­er­a­tions and to view clearly pub­lic spa­ces. Le­gal ex­perts say they will have to ob­tain a war­rant to spy on pri­vate homes.

As of Dec. 1, ac­cord­ing to the FAA, there were more than 270 ac­tive au­tho­riza­tions for the use of dozens of kinds of drones. Ap­prox­i­mately 35 per­cent of these per­mis­sions are held by the De­fense Depart­ment, 11 per­cent by NASA and 5 per­cent by the Depart­ment of Home­land Se­curidrones ty, in­clud­ing per­mis­sion to fly Preda­tors on the north­ern and south­ern bor­ders.

Other users are law en­force­ment agen­cies, in­clud­ing the FBI, as well as man­u­fac­tur­ers and aca­demic in­sti­tu­tions.

For now, only a hand­ful of po­lice de­part­ments and sher­iff ’s of­fices in the United States — in­clud­ing in Queen Anne’s County, Md., Mi­ami-Dade County, Fla., and Mesa County, Colo. — fly drones. They so do as part of pi­lot pro­grams that mostly limit the use of the drones to train­ing ex­er­cises over un­pop­u­lated ar­eas.

Among state and lo­cal agen­cies, the Texas Depart­ment of Pub­lic Safety has been the most ac­tive user of drones for high-risk op­er­a­tions. Since the search out­side Austin, Nabors said, the agency has run six op­er­a­tions with drones, all near the south­ern border, where of­fi­cers con­ducted sur­veil­lance of drug and hu­man traf­fick­ers.

Some po­lice of­fi­cials, as well as the man­u­fac­tur­ers of un­manned aerial sys­tems, have been clam­or­ing for the FAA to al­low their rapid de­ploy­ment by law en­force­ment. They tout the technology as a tac­ti­cal game-changer in sce­nar­ios such as hostage sit­u­a­tions and high-speed chases.

Over­seas, the drones have drawn in­ter­est as well. A con­sor­tium of po­lice de­part­ments in Bri­tain is de­vel­op­ing plans to use them to monitor the roads, watch pub­lic events such as protests, and con­duct covert ur­ban sur­veil­lance, ac­cord­ing to the Guardian news­pa­per. Se­nior Bri­tish po­lice of­fi­cials would like the ma­chines to be in the air in time for the 2012 Olympics in London.

“Not since the Taser has a technology promised so much for lawen­force­ment,” said Ben­Miller of the Mesa County Sher­iff ’s Of­fice, which has used its drone, called a Dra­gan­flyer, to search for missing per­sons af­ter re­ceiv­ing emer­gency au­tho­riza­tion from the FAA.

Cost has be­come a big sell­ing point. A drone sys­tem, which in­cludes a ground op­er­at­ing com­puter, can cost less than $50,000. A new po­lice heli­copter can cost up to $1 mil­lion. As a con­se­quence, fewer than 300 of the ap­prox­i­mately 19,000 law en­force­ment agen­cies in the United States have an avi­a­tion ca­pa­bil­ity.

“ The cost is­sue is sig­nif­i­cant,” said Martin Jack­son, pres­i­dent of the Air­borne Law En­force­ment As­so­ci­a­tion. “Once they open the airspace up [to drones], I think there will be quite a bit of de­mand.”

The FAA is re­luc­tant to sim­ply open up airspace, even to small drones. The agency said it is ad­dress­ing two crit­i­cal ques­tions: How will un­manned air­craft “ han­dle com­mu­ni­ca­tion, com­mand and con­trol”? And how will they “sense and avoid” other air­craft, a ba­sic safety el­e­ment in manned avi­a­tion?

Mil­i­tary stud­ies sug­gest that drones have a much higher ac­ci­dent rate than manned air­craft. That is, in part, be­cause the mil­i­tary is us­ing drones in a bat­tle­field en­vi­ron­ment. But even out­side war zones, drones have slipped out of their han­dlers’ con­trol.

In the sum­mer, a Navy drone, ex­pe­ri­enc­ing what the mil­i­tary called a soft­ware prob­lem, wan­dered into re­stricted Washington airspace. Last month, a small Mex­i­can army drone crashed into a res­i­den­tial yard in El Paso.

There are also reg­u­la­tory is­sues with civil­ian agen­cies us­ing mil­i­tary fre­quen­cies to op­er­ate drones, a prob­lem that sur­faced in re­cent months and has grounded the Texas DPS drones, which have not been flown since Au­gust.

“What level of trust do we give this technology? We just don’t yet have the data,” said John Allen, di­rec­tor of Flight Stan­dards Ser­vice in the FAA’s Of­fice of Avi­a­tion Safety. “We are mov­ing cau­tiously to keep the Na­tional Airspace Sys­tem safe for all civil op­er­a­tions. It’s the FAA’s re­spon­si­bil­ity to make sure no one is harmed by [an un­manned air­craft sys­tem] in the air or on the ground.”

Of­fi­cials in Texas said they sup­ported the FAA’s con­cern about safety.

“We have 23 air­craft and 50 pi­lots, so I’m of the opin­ion that FAA should pro­ceed cau­tiously,” Nabors said.

Le­gal touch­stones

Much of the le­gal frame­work to fly drones has been es­tab­lished by cases that have ex­am­ined the use of manned air­craft and var­i­ous tech­nolo­gies to con­duct sur­veil­lance of both pub­lic spa­ces and pri­vate homes.

In a 1986 Supreme Court case, jus­tices were asked whether a po­lice depart­ment vi­o­lated con­sti­tu­tional pro­tec­tions against il­le­gal search and seizure af­ter it flew a small plane above the back yard of a man sus­pected of grow­ing mar­i­juana. The court ruled that “ the Fourth Amend­ment sim­ply does not re­quire the po­lice trav­el­ing in the pub­lic air­ways at this al­ti­tude to ob­tain a war­rant in or­der to ob­serve what is vis­i­ble to the naked eye.”

In a 2001 case, how­ever, also in­volv­ing a search for mar­i­juana, the court was more skep­ti­cal of po­lice tac­tics. It ruled that an Ore­gon po­lice depart­ment con­ducted an il­le­gal search when it used a ther­mal imag­ing de­vice to de­tect heat com­ing from the home of an man sus­pected of grow­ing mar­i­juana in­doors.

“ The ques­tion we con­front to­day is what lim­its there are upon this power of technology to shrink the realm of guar­an­teed pri­vacy,” Jus­tice An­tonin Scalia wrote in the 2001 case.

Still, Joseph J. Vacek, a pro­fes­sor in the Avi­a­tion Depart­ment at the Uni­ver­sity of North Dakota who has stud­ied the po­ten­tial use of drones in law en­force­ment, said the main ob­jec­tions to the use of do­mes­tic drones will prob­a­bly have lit­tle to do with the Con­sti­tu­tion.

“Where I see the chal­lenge is the so­cial norm,” Vacek said. “Most peo­ple are not okay with con­stant watch­ing. That hover-and-stare ca­pa­bil­ity used to its max­i­mum po­ten­tial will prob­a­bly ruf­fle a lot of civic feath­ers.”

At least one com­mu­nity has al­ready balked at the prospect of un­manned air­craft.

The Hous­ton Po­lice Depart­ment con­sid­ered par­tic­i­pat­ing in a pi­lot pro­gram to study the use of drones, in­clud­ing for evac­u­a­tions, search and res­cue, and tac­ti­cal op­er­a­tions. In the end, it with­drew.

A spokesman for Hous­ton po­lice said the depart­ment would not com­ment on why the pro­gram, to have been run in co­op­er­a­tion with the FAA, was aborted in 2007, but traf­fic tick­ets might have had some­thing to do with it.

When KPRC-TV in Hous­ton, which is owned by The Washington Post Co., dis­cov­ered a se­cret drone air show for dozens of of­fi­cers at a re­mote lo­ca­tion 70 miles from Hous­ton, po­lice of­fi­cials were forced to call a hasty news con­fer­ence to ex­plain their in­ter­est in the technology.

A se­nior of­fi­cer in Hous­ton then men­tioned to re­porters that drones might ul­ti­mately be used for record­ing traf­fic vi­o­la­tions.

Fed­eral of­fi­cials said sup­port for the pro­gram crashed.

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