In several cases, the Supreme Court has held that warrantless surveillance by manned aircraft doesn’t violate the Fourth Amendment. But small, cheap, maneuverable, and often undetectable drones may create cases in which a difference in degree becomes a difference in kind.
Pressure is mounting to normalize the use of drones in the United States. A 2010 Department of Defense report emphasizes the Pentagon and the Department of Homeland Security’s need for “routine access to U.S. airspace” in order “to execute a wide range of missions including… surveillance and tracking operations.”
The Bureau of Customs and Border Protection, under the aegis of the Department of Homeland Security, has seven non‐weaponized Predator drones in operation, one of which it used to assist a North Dakota sheriff with an arrest last summer, and “the FBI and Drug Enforcement Administration have used Predators for other domestic investigations,” the Los Angeles Times reported in December.
From Miami, Florida, to Arlington, Texas, local police departments have received federal grants to purchase UAVs. Police in Ogden, Utah, used federal tax dollars for a surveillance blimp outfitted with night‐vision cameras. “We believe it will be a deterrent to crime when it is out and about,” says the mayor.
In an incident that typifies everything wrong with the growing militarization of U.S. law enforcement, members of a Houston‐area sheriff’s department brought some of their coolest gear out to a defense contractor’s training facility last September for a drone demonstration‐slash‐photo op. The $300,000 “Shadowhawk” UAV they were looking to buy with DHS grant money lost control and crashed into the SWAT Team’s “Bearcat” armored personnel carrier (also purchased with DHS boodle).
Not to worry — they bought a Shadowhawk drone anyway. Chief Deputy Randy McDaniel enthused: “I absolutely believe it will become a critical component on all SWAT callouts and narcotics raids and emergency management operations.”
Over the past decade, the creeping militarization of the homefront has proceeded almost unnoticed, with DHS grants subsidizing the proliferation of security cameras and military ordnance for local police departments.
On April 19, Reps. Ed Markey, D‐Mass., and Joe Barton, R‐Texas, co‐chairs of the Congressional Bipartisan Privacy Caucus, sent a letter to the head of the FAA urging the adoption of privacy protections, given the “potential for drone technology to enable invasive and pervasive surveillance.” But Congress needn’t wait on Obama’s FAA to start protecting Americans’ privacy rights.
It’s well past time we stopped sleepwalking toward dystopia and had a serious public debate about where the lines should be drawn.