“Particularised cases” – use of drones by the FBI

On 19th June, the Director of the FBI, Robert Mueller, told the US Senate Judiciary Committee that his agency had used drones for surveillance purposes.  In his testimony, which was primarily concerned with telephone data collection, he was briefly questioned on the FBI’s use of this technology and the relevant privacy issues which arose.

On the issue of the development of policies and procedures around drone use by the FBI, he said that the organisation was in the initial stages of undertaking this work.  He went on to comment that the agency’s “footprint was very small; they had very few; and they were of limited use”.  He confirmed that they were used on US soil.  Highlighting the concern of the impact of drone use on privacy, Senator Dianne Feinstein, questioned the privacy strictures on the use of drones.  In response, Mueller stated that use was limited, narrowly focused and only used in “particularised cases”.  He wasn’t clear on how the images gathered were kept.

According to subsequent media reports, initial permission to use drones was submitted in 2009 though this was not granted until 2010;  the agency always sought permission from the Federal Aviation Authority (FAA) for each deployment.  Subsequent media coverage and comment has been permeated with an air of surprise that the FBI are using this technology.  However, considering the huge commercial drive in the US to increase the civil uses of drones, and the rise in use by law enforcement officials, combined with the established drone use by the US Border Agency as well as by the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives, this surprise seems odd.  Indeed, Congress passed the Modernization and Reform Act which directly requires the FAA to increase the integration of unmanned aircraft into the national airspace system by 2015.  Surely then the greater question is why the FBI have not been using drones more prolifically?

While the US’ political, cultural and regulatory environment is different from that of the UK, particularly when it comes to State intrusion into the lives of its citizens, there are similar concerns present in both locations at the lack of a legal framework available to police this drone use.  The primary regulator appears to be the FAA, similar to the UK’s Civil Aviation Authority.  Concerns at this body’s involvement have focused on the fact that the agency is primarily tasked with air traffic safety rather than broader issues around surveillance.  While the UK’s protection of the right to privacy is enshrined in the Human Rights Act, in other words legislation; in contrast, the US right to privacy is focused on the 4th Amendment of the Constitution.  This prohibits both the entry and search of a home undertaken physically and from the use, by the state, of unwarranted intrusion into the home using other technology.  According to a research note by the Library of Congress, the “constitutionality of domestic drone surveillance may depend upon the context in which such surveillance takes place”.  Congress has also drafted a number of new bills to address this issue, for example, the Preserving American Privacy Act of 2013.  How US citizens can be protected from State surveillance drones may depend more on existing and developing jurisprudence from the Supreme Court than from new legislation.

Considering recent revelations around PRISM and the decision on 8 July by the European Parliament to launch an “in-depth inquiry” into the US’ surveillance programmes and noted that “Parliament also expresses grave concern about allegations that similar surveillance programmes are run by several EU member states, such as the UK, Sweden, The Netherlands and Germany. It urges them to examine whether those programmes are compatible with EU law …”, the relationship between privacy, surveillance and regulation of civil use of drones seems set to undergo further challenges in the months ahead.

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