Turbulence Ahead: Domestic Drone Debate Intensifies

National Journal has a new piece out today that highlights the continuing controversy over the Federal Aviation Administration's failure thus far to publish a final rule governing the operation of drones in domestic airspace (FAA's current unmanned aerial system (UAS) guidance can be found here). One thing the FAA will not be doing is wading into the commercial sector privacy debate over drones; it has punted that issue to the National Telecommunications and Information Administration (NTIA). But what about federal agencies and their use of UASs?

Federal domestic UAS use has a checkered history.

In December 2014, the Department of Homeland Security's Inspector General issued a report blasting the Customs and Border Protection (CBP) drone program as waste:

• The unmanned aircraft did not meeting the CBP Office of Air and Marine (OAM) goal of being airborne 16 hours a day, every day of the year; in FY 2013, the aircraft were airborne 22 percent of the anticipated number of hours.
• Compared to CBP’s total number of apprehensions, OAM attributed relatively few to unmanned aircraft operations.
• OAM could not demonstrate that the unmanned aircraft have reduced the cost of border surveillance.
• OAM expected the unmanned aircraft would be able to respond to motion sensor alerts and thus reduce the need for USBP response, but the IG found few instances of this having occurred.

In 2013 alone, the ineffective CBP/OAM drone program cost taxpayers over $62 million--and CBP had plans to spend $443 million more on additional drones in the coming years. And in the privacy context, the DHS IG did not evaluate what CBP did with all of the video, audio or other sensor data collected by DHS UASs.

The Justice Department has had its own drone controversies.

In March 2015, the DoJ IG issued a long overdue final report on DoJ component use of UASs. The IG found that the Bureau of Alcohol, Tobacco and Firearms (ATF) had spent over $600,000 on UASs that it could not use because of "flight time and maneuverability" issues. However, even after ATF disposed of its initial set of drones, the IG found that another ATF element, the National Response Team (NRT),

purchased five small commercial UAS for about $15,000. NRT officials told [the IG] that although they attempted one brief UAS flight in July 2014 with one of these units to document a fire scene, NRT did not coordinate either the purchase or the flight with ATF’s UAS program office. NRT officials told [the IG] that they have since contacted the program office regarding UAS requirements and grounded these UAS until they receive further guidance regarding their use.

Despite the fact that DoJ and DHS have been operating drones for years, it was not until May 2015 that DoJ actually issued UAS-specific privacy and civil liberties guidance to its components. The data retention policy outlined in the guidance is troubling:

The Department shall not retain information collected using UAS that may contain personally identifiable information [PII] for more than 180 days unless retention of the information is determined to be necessary for an authorized purpose or is maintained in a system of records covered by the Privacy Act.

The formulation "authorized purpose" is not the same as "authorized by statute"--and the current, broader definition potentially gives DoJ components a level of discretion they should not have in deciding what PII-laden drone data to keep. The current policy is an invitation for a repeat of the controversy over access to police body camera footage that is currently playing out at the state and local level. Whether DoJ will revise the policy to make it easier for journalists and the public to get access to DoJ drone footage, and narrow the scope of legitimate data retention purposes, remains to be seen.