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When the Drones Come Home to Roost

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One was called in by law enforcement in North Dakota to use thermal imagery in determining whether three suspects were dangerous. Officials in Florida want them for security surveillance at this year's Republican National Convention. And Virginia's Governor recently declared it would be great if they were flying over his state. The Federal Aviation Administration estimates that up to 30,000 new unmanned aircraft systems -- or drones -- could be launched inside the United States in the next decade.

The conventional notion of drones in the public consciousness conjures up images of stealthy devices swooping down from the sky to take out terrorists in far-away places like Afghanistan, Pakistan, and Yemen. The Obama Administration's widely-reported increase in the use of drone strikes has been accompanied by a healthy public debate about the costs and benefits -- including the moral, ethical and legal implications -- of these tactics.

But the very same drone technology deployed around the world is currently circling in the skies over our heads. And, as another Fourth of July passed last week, with Americans paying tribute to our country's independence, it's worth considering how the proliferation of drones domestically impacts the very freedoms we hold dear.

The FAA is principally responsible for introducing new technology and aircraft into the domestic airspace. In a little-noticed move last month, the FAA issued rules that outline steps for public safety agencies to obtain licenses to fly drones.

Although the FAA rules cover drone training and performance requirements, they miss a critical component: guidance to state and local governments related to privacy and civil liberties protections. Issuing drone licenses without these baseline safeguards raises serious concerns.

The FAA's role in regulating drones takes on greater importance because privacy law -- at least for now -- is unlikely to serve as a sufficient backstop to potential abuse. There is very little legal precedent that would proscribe law enforcement's use of drones within our borders. Americans do not generally enjoy a reasonable expectation of privacy in public spaces, nor in areas of personal property -- like fenced-in backyards and driveways -- which are visible from public viewing points -- such as the sky.

Earlier this year, the Supreme Court applied the Fourth Amendment's prohibition of unreasonable searches and seizures to 21st-century surveillance technology: the use of a GPS device by law enforcement to monitor a vehicle's movement for an extended period of time. In his concurring opinion, Justice Alito foreshadowed an unresolved legal dilemma which will surely trouble Americans as the use of drones proliferates domestically: if police attach a GPS to a car and follow the car for a brief period of time, the Fourth Amendment would provide protection, but if police follow the same car for a much longer period of time using aerial surveillance, this tracking would not be subject to Fourth Amendment constraints.

Nevertheless, this is the future of law enforcement. One drone -- the Predator B -- can monitor a target continuously for 20 hours, far longer than any police helicopter or manned aircraft. And the cost is relatively cheap: the Los Angeles County Sheriff's Department recently purchased new helicopters at a cost of $1.7 million each; a small drone costs about $40,000.

Drones can provide tremendous benefits: the agriculture industry wants them to treat crops with pesticides; the energy sector can use them to monitor infrastructure such as pipelines; and first responders want drones to explore dangerous or volatile accident sites. But because of the heightened capacity for domestic surveillance, and the addition of hundreds, if not thousands of additional machines to an already-crowded airspace, there are understandable risks -- both privacy and safety -- to this new technology.

We need a robust public debate about the moral, ethical and legal consequences of domestic drone use in the same way our country grapples over these issues when we target terrorists abroad: who may operate drones, for what use, for how long, and with what privacy and civil liberties protections? And, while all domestic drones are currently "unarmed," will this restriction be maintained? A Deputy Police Chief in Texas recently noted that his department is considering using rubber bullets and tear gas on its drone.

Although many planes have already left the hangar -- the FAA has issued over 300 temporary licenses to operate drones -- it's not too late for the agency to put in place sensible privacy and civil liberties protections to keep pace with an era of vast proliferation.

Whether the FAA addresses these needed safeguards through notice and comment rulemaking, or Congress prescribes them through legislation, governmental and non-governmental operators who wish to fly drones should be required to comply with basic accountability and transparency requirements. By so doing, we can uphold the great promise of drone technology in our modern society, while minimizing the interference with the liberty we celebrate every July.

Robert Friedman is a Fellow at the Truman National Security Project and a non-resident Fellow at the Georgetown Center on National Security and the Law.

This story originally appeared in our weekly iPad magazine, Huffington, in the iTunes App store.

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