ACLU-OK leader: State should limit use of drone technology

To The Editor: 

The ACLU of Oklahoma is a non-profit, non-partisan, privately funded membership organization dedicated to defending and further realizing the rights embodied in the Constitution of the United States and the Constitution of the State of Oklahoma. We serve as the Oklahoma affiliate of the American Civil Liberties Union.

The ACLU has a long history of defending individual privacy rights from unnecessary and unwarranted intrusion by the government. That defense has evolved exponentially in an attempt to parallel the privacy issues that have arisen with the progress of technology.

Our defense of privacy in the face of new threats posed by technology is not be confused with technophobia. We celebrate the improvements technology has made to the quality of life. In particular with the deployment of drones we recognize the many ways in which drones can play a significant role in advancing public safety interests, increasing efficiency in marketplaces such as agriculture, and contributing to research and development of products and services we cannot even begin to imagine. 

Like any new technology, especially one that is poised to become commonplace in a very short period of time, there are also ways in which that technology can be used that would offend very basic and fundamental values, including the value of privacy.

Some have argued that the value of privacy is in a subservient position to other values of society. These arguments suggest that privacy is only valued by those with something to hide; that for law abiding, moral, decent, upright citizens, privacy is but a mere garnish on a plate filled with a more substantial meal. However, these arguments would not win a debate over whether law enforcement could conduct random searches of homes without cause–a practice that would no doubt yield an increase in arrests and convictions. Thus, the limits of other values, in this case the inspection of your home without cause by the government which would in theory make us safer and more secure from would be criminals, yield to our demand for privacy.

As a society, we have struck a balance. In our Constitutions and our laws we have set limits on when the government is allowed to search our homes, our cars, our computers, track our movements with GPS devices, and listen to our phone calls.

No doubt these limits are not perfect. At times they have been abused by the government. In other instances they have acted to free criminals from the reach of the law. But as imperfect as they are, they do stand for the powerful bargain that we have made with ourselves as a society.

Privacy is the right, absent cause, to be let alone from the government; the right to go to your doctor, your church, your friend’s home, a political rally, a bookstore, a gun range, or even in your own backyard without having your every move monitored, recorded, and analyzed by the government. Studies have demonstrated that when someone is being watched or they perceive themselves as being watched, they change their behavior.

The prospect of drones overhead, especially when combined with other surveillance technologies from cell phone tracking to automatic license plate readers, traffic cameras, etc., will move us closer to an all encompassing surveillance state.  

Other arguments suggest we have already entered, and irreversibly so, a surveillance state and that in turn mitigates the impact drones would have on the privacy rights of Oklahomans. This argument underestimates the extent to which drones signal a massive shift in the surveillance landscape.

This argument often takes the form of comparing drones to the current use of manned aircraft for surveillance purposes, which courts have largely approved for warrantless and suspicionless surveillance by the government. But drones are different.

Drones erase the natural limits on aerial surveillance. Manned helicopters and fixed-wing aircraft are expensive to acquire, staff, and maintain. A police helicopter costs from $500,000 to $3 million to acquire, and $200-$400 an hour to fly.

Manned aircraft are large, complex machines requiring expert ground crews, multiple shifts of pilots and copilots, and (unlike drones which can often be hand-launched) runways or helipads. Such expenses mean there are inevitably going to be far fewer of them—which in turn means the police are likely to use them only where they are most needed.

With drones, on the other hand, it’s easy to foresee a day when even a professional police drone could be acquired for less than a hundred dollars, including maintenance costs. And if technology and laws eventually reach the point where drones can fly autonomously, they would become even cheaper because police departments wouldn’t even have to pay staff to control or monitor them.

In addition, there are some kinds of privacy invasion that are only possible with drones. For example, micro-drones maneuvering into intrusive places; even the smallest manned helicopter can’t fly into a garage or hover unseen outside a third-story bedroom window. Also consider the fact that drones can be silent; the loud noise a helicopter makes serves as a crude kind of notice that one may be under surveillance from the air. Silent or high-flying drones that can’t be heard provide no such notice.

Finally, it’s very likely that the technology will develop new capabilities that have never existed for police helicopters. Many of these may be things that haven’t even occurred to anyone yet, but to pick just one possibility, it could involve the ability for swarms of drones to act in increasingly sophisticated, coordinated fashion to carry out surveillance that a single manned aircraft could never perform. And drones will permit continuous, 24/7 surveillance in a way that we haven’t seen with manned aircraft. 

Just as the increasing affordability of drones, as well as technological breakthroughs that will allow drones to operate for long periods of time and to do so undetected, will make them valuable for legitimate and reasonable missions, these attributes make it all the more likely that more Oklahomans will be subject to surveillance with no notice and no cause unless this legislature acts soon to set clear rules for when and how the government uses this technology.

We strongly encourage these guidelines begin in the legislature. There are least five reasons we should not wait on the courts to grapple with this issue.

First, why should we needlessly wait for abuses to occur when they are foreseeable today. When the government gets its hands on new, powerful surveillance tools and are unrestricted in their use, we know there will be eventual abuses, both of the illegal sort and those that violate our values.

Second, the legal system takes a long time to adapt legal principles to technology. In 1928 the Supreme Court took up a case concerning the government’s ability to listen to phone calls without a warrant. The court held that because the government was not actually entering your home, no search had occurred and therefore no warrant was required. It was not until 1967, when the Court ruled that the Fourth Amendment protects “people, not places,” that it required the government to obtain a probable cause warrant before tapping your phone line. 

Third, while we believe the current trajectory of case law is favorable for a judicial resolution in favor of privacy rights, the outcome is far from certain. If we can agree now that we value privacy, then there is no reason to wait on a case to make its way to through the judicial system with no guarantee that a court’s decision will protect our agreed upon privacy interest.

Fourth, legislative bodies routinely set rules even when there are clear Constitutional principles at issue. Following the 1967 ruling regarding telephone conversations, Congress set about creating detailed standards the government had to follow.

Finally, it is important to keep in mind that courts often show great deference to towards the judgments of elected representatives. By acting to protect the fundamental right of privacy, you will send a strong signal to courts in and out of Oklahoma that these rights are worth defending.

Clear rules also benefit the private sector. As price points drop and the potential benefits of drones become clearer to governments at all levels, one impediment to adoption will be if the people do not believe adequate steps have been taken to secure their privacy. 

We urge the members of the Oklahoma House to consider these arguments and move in the upcoming session to adopt legislation that:

1. SETS USAGE LIMITS: Drones should be deployed by the government only with a probable cause warrant, in an emergency, or when there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific criminal act.

2. REGULATES DATA RETENTION: Images should be retained only when there is reasonable suspicion that they contain evidence of a crime or are relevant to an ongoing investigation or trial.

3. DEMANDS OPEN DOOR POLICY MAKING: Usage policy on domestic drones should be decided by the public’s representatives, not by police departments or other administrative agencies, and the policies should be clear, written, and open to the public.

4. REQUIRES TRANSPARENCY: Use of domestic drones should be subject to open audits and proper oversight to prevent misuse.

5. PROHIBITS WEAPONS: Domestic drones should not be equipped with lethal or non-lethal weapons.

These guidelines will put us on a path to ensure that the realization of the benefits of drones do not come at the expense of the fundamental right of privacy. 

Sincerel, Ryan Kiesel, Oklahoma City 

Note: Kiesel, a former Democratic state representative, is executive director of the American Civil Liberties Union, Oklahoma. This is adapted from his recent testimony before a state House interim study. For further information, visit:  

Ryan Kiesel

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