Before Unmanned Arial Vehicles (UAVs) start routinely observing Americans stealthily from above, the Federal Aviation Administration (FAA) needs to address two little concerns, safety and privacy, says the Government Accountability Office (GAO).
From large Predator-like aircraft that you just might notice, to tiny helicopters that can hover silently outside your bedroom window, remotely-controlled unmanned surveillance aircraft are rapidly spreading from the skies above foreign battlefields to the skies above the United States.
In September 2010, the U.S. Customs and Border Patrol announced that it was using Predator B unmanned aircraft to patrol the entire Southwestern border from California to the Gulf of Mexico in Texas. By December 2011, the Department of Homeland Security had deployed even more Predator drones along the border to enforce President Obama's Mexican Border Initiative.
Besides border security duties, a variety of UAV's are increasingly being used inside the U.S. for law enforcement and emergency response, forest fire monitoring, weather research, and scientific data collection. In addition, transportation departments in several states are now using UAV's for traffic monitoring and control.
However, as the GAO points out in its report on Unmanned Aircraft in the National Airspace System, the Federal Aviation Administration (FAA) currently limits the use of UAV's by authorizing them on a case-by-case basis after conducting a safety review.
According to the GAO, the FAA and other federal agencies that have an interest in the use of UAVs, including the Department of Homeland Security, which includes the FBI, are working on procedures that would simplify the process of deploying UAVs into U.S. airspace.
As early as 2007, the FAA issued a notice clarifying its policy on the use of UAVs in the U.S. airspace. The FAA's policy statement focused on safety concerns posed by the widespread use of UAVs, which the FAA noted "range in size from wingspans of six inches to 246 feet; and can weigh from approximately four ounces to over 25,600 pounds."
The rapid proliferation of UAV's also worried the FAA, which noted that in 2007, at least 50 companies, universities, and government organizations were developing and producing some 155 unmanned aircraft designs.
"The concern was not only that unmanned aircraft operations might interfere with commercial and general aviation aircraft operations," wrote the FAA, "but that they could also pose a safety problem for other airborne vehicles, and persons or property on the ground."
In its recent report, the GAO outlined four primary safety concerns arising from the use of UAVs in the United States:
- the inability for UAVs to recognize and avoid other aircraft and airborne objects in a manner similar to manned aircraft;
- vulnerabilities in the command and control of UAV operations. In other words, GPS-jamming, hacking and the potential for cyber-terrorism;
- a lack of technological and operational standards needed to guide safe and consistent performance of UAVs; and
- a lack of comprehensive government regulations necessary to safely facilitate the accelerated integration of UAS into the national airspace system.
But in its analysis, the GAO reported that while the FAA has "taken steps" to meet Congress' deadline, developing UAV safety regulation at the same time the use of UAVs is racing head is resulting in problems.
The GAO recommended that the FAA do a better job in keeping track of where and how UAV's are being used. "Better monitoring can help FAA understand what has been achieved and what remains to be done and can also help keep Congress informed about this significant change to the aviation landscape," GAO noted.
In addition the GAO recommended that the Transportation Security Agency (TSA) examine the security issues arising from the future non-military use of UAVs in U.S. airspace and "and take any actions deemed appropriate."
Privacy for Security: A Worthwhile Tradeoff?
Clearly, the main threat to personal privacy posed by the ever-expanding use of UAVs in U.S. airspace is the substantial potential for violations of the protection against unreasonable search and seizure ensured by the Fourth Amendment to the Constitution.
Recently, members of Congress, civil liberties advocates and the general public have expressed concern over the privacy implications in the use of new, extremely small UAVs equipped with video cameras and tracking devices, hovering silently in residential neighborhoods largely unnoticed, especially at night.
In its report, GAO cited a June 2012 Monmouth University poll of 1,708 randomly selected adults, in which 42% said they were very concerned about their own privacy if U.S. law enforcement started using UAS with high tech cameras, while 15% said they were not at all concerned. But in the same poll, 80% said they supported using UAV's for "search and rescue missions."
Congress is aware of the UAV vs. privacy issue. Two laws introduced in the 112th Congress - the Preserving Freedom from Unwarranted Surveillance Act of 2012 (S. 3287), and the Farmer's Privacy Act of 2012 (H.R. 5961) - both seek to limit the ability of the federal government to use UAVs to collect information pertaining to investigations of criminal activity without a warrant.
Two laws already in effect provide protections for personal information collected - by any method -- and used by federal agencies: the Privacy Act of 1974 and the privacy provisions of the E-Government Act of 2002.
The Privacy Act of 1974 limits the collection, disclosure, and use of personal information maintained in databases by agencies of the federal government. The E-Government Act of 2002 enhances the protection of personal information collected through government websites and other online services by requiring the federal agencies to perform a privacy impact assessment (PIA) before collecting or using such personal information.
While the U.S. Supreme Court has never ruled on privacy issues related to the use of UAVs, the court has ruled on the potential infringement on privacy posed by advancing technology.
In the 2012 case of Unites States v. Jones, the court ruled that the prolonged use of a GPS tracking device, installed without a warrant, on a suspect's car, did constitute a "search" under the Fourth Amendment. However, the court's decision failed to address the whether or not such GPS searches violated the Fourth Amendment.
In its Unites States v. Jones decision, one Justice observed that in respect to peoples' expectations of privacy, "technology can change those expectations" and that "dramatic technological changes may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile."