Drones in region’s skies to forever redefine privacy

Paul D. Shinkman, wtop.com
Tw: @ShinkmanWTOP

WASHINGTON – The Virginia governor’s enthusiasm for drones has been met with concern from legal experts to the average Twitter user, while others see a technological revolution that will sharply improve law enforcement and innumerable facets of commerce and agriculture.

Whatever the outcome, it’s clear drones will redefine privacy in the Old Dominion and other jurisdictions nationwide.

Gov. Bob McDonnell told WTOP last week that investing in Unmanned Aerial Vehicles, particularly for police forces, would be “the right thing to do,” citing their success over battlefields in the Middle East where they have reduced budgets and strengthened safety. His comments echo a national trend toward what the Pentagon says will be a $7 billion industry by 2013.

The state, which has what McDonnell calls a “love affair with the military,” is gearing up to become a key player in drone development as military technology innovations trickle back home from multiple war zones abroad.

The Drones are Coming

“You’re going to see drones and unmanned aerial systems in a large capacity in various roles,” says Randall Burdette, director of the Virginia Department of Aviation. “Not just in law enforcement — it could be border patrol, traffic enforcement, accidents (or for) first responders.”

These are “not necessarily” the military-grade Predator drones that have become synonymous with UAVs in the mind of the average news consumer. The Department of Homeland Security uses those for border control, but Burdette envisions much smaller devices from 2 to 6 feet in length, or smaller, “just to look over a wall, or something of that nature, in a sniper-type environment.”

They could have infrared or light amplification technology to allow them to survey the land in good or bad weather, in daytime or at night.

“There is a lot of very good, life-preserving roles these things can play,” says Burdette, who noted the job creation that comes with a growing industry.

Virginia is currently competing for a Federal Aviation Administration contract in partnership with Maryland to develop one of six drone test facilities. The joint program would use existing government aviation testing sites near Wallops and Dahlgren in Virginia or Patuxent River in Maryland to allow public and private organizations to test drones, Burdette says. It would also generate some revenue to offset the costs of those bases.

What Kind of Attack?

What some see as life-saving technology, others view as a serious infringement on Americans’ civil liberties if privacy protection laws don’t soon change.

“It’s one thing for you to be able to stand on a street corner and see a police officer down the street,” says Claire Guthrie Gastanaga, executive director of the American Civil Liberties Union of Virginia. “It’s quite another for there to be an invisible eye in the sky involved in surveilling your every activity.”

The equipment is “invasive as of itself,” says Amie Stepanovich, associate litigation council with the Electronic Privacy Information Center, an electronic surveillance watchdog group. UAVs can carry “gigapixel cameras,” which can produce photographs 100 times more detailed than anything the average person would own, as well as thermal imaging and facial recognition technologies.

“Every time that surveillance is made easier and cheaper, it increases,” she says. “There is this fear, and I think it’s a well-founded fear, that when it’s easier to keep track of people and to watch what they’re doing, there’s more of the actual surveillance taking place.”

Aviation officials, including Burdette, say any current laws against unwarranted surveillance would be enough to protect privacy rights, or new laws would quickly follow that would close any loopholes.

But Gastanaga points to what she sees as a completely new spying realm dominated by drones, and a sluggish legal system that hasn’t reacted quickly enough to similar situations in the past.

“Our current privacy laws are too weak to protect us in an environment where this kind of technology might be unleashed in a civilian society,” says Gastanaga. “There is a very, very broad constituency of Virginians who do not believe that kind of invasion of our privacy by the government is warranted.”

The usual checks against new law enforcement technology wouldn’t be able to keep up against drones, she says.

“We had a natural limit on aircraft surveillance before because the craft was big and noisy so people knew it was there,” she says. “More importantly, it was expensive, and drones are not.”

ACLU issued a report late last year calling on FAA or Congress to issue necessary reforms before endorsing the widespread use of drones domestically. Specifically, it wants regulations to ensure that law enforcement agencies must first obtain a warrant before they can use this technology to track someone.

This isn’t the first time a new form of surveillance technology has caught the nation’s attention. This past January, the Supreme Court ruled in U.S. vs. Jones that police attaching a GPS device to a vehicle and tracking it without a warrant violated the Fourth Amendment to the Constitution. That case evolved from a 2005 trial against two nightclub owners in D.C., whose movements were tracked by a team of FBI agents and D.C. police using a GPS device.

“Laws are incredibly slow to address things,” says Stepanovich. “If they don’t catch an advance in technology prior to its prevalence on the market, it doesn’t really catch up.”

“If you wait until afterward, you’re already letting rights be violated,” she says.

Much of the use of drones is also shrouded in secrecy. DHS has nine predator drones they use for border security, says Stepanovich, which EPIC knows from department press releases, but there is no public information on precisely what purpose they serve.

Legal Anti-Aircraft Flak

Some local jurisdictions have taken their own action against drone surveillance. The Seattle City Council is considering legislation that would restrict the use of UAVs, following reports that FAA had cleared the city’s police department to deploy two drones it had purchased.

The incident originally spurred public outrage, with some locals calling it “Big Brother” and comparing it to “(warrantless) wiretaps,” The Seattle Times reports.

This ability for public law to trump civil law, combined with rigorous FAA regulations, could be enough to keep drones under control, says Kevin Kochersberger, associate professor for mechanical engineering at Virginia Tech and director of its Unmanned Systems Laboratory. The university is one of only a few in the country currently licensed to deploy drones.

“It’s an exciting time for lawyers and judges to be involved, because I think this is all going to come down to case law,” Kochersberger says. Most of the UAV research conducted at Va. Tech. applies to humanitarian use, which he says will be typical of how the aerial vehicles are used.

Existing Safeguards

The process for acquiring an FAA license to operate a drone makes the use of them safer, Kochersberger says. In 2006, insurgents in Iraq allegedly hijacked a drone using only a piece of $26 software, The Wall Street Journal reported, leading some to speculate a similar crisis could occur over American soil.

However, to obtain a license, operators must first prove their drones’ “lost-link procedures” for how the device will operate if it loses its control signal. And most drones are very light, don’t fly very quickly and can only operate for 30 minutes, Kochersberger says.

Much of the general concern stems from the proliferation in the media and in the public of the word “drone” itself, he says, which has historically been associated with the military and weaponry.

The term was first coined before World War II for the surrogate aircraft used for target practice. It eventually evolved into the kind of weaponized, unmanned aircraft that makes headlines, such as in the killing of al-Qaida No. 2 Abu Yayha al- Libi in Pakistan on Tuesday.

“Really, all this push to get more unmanned aircraft into the national airspace is not for military purposes, not for purposes to enhance defense,” Kochersberger says. “It’s really to expand commercial opportunities.”

UAVs will be a “boon” for real estate, agriculture and urban planning, he says, as well as appraising a disaster site, such as an earthquake or radiation leak, to examine how first-responders can enter safely. They could appraise a crash site on the Beltway, precluding the need for an investigative team to completely shut down traffic.

In January, a drone effectively documented a Dallas meat packing plant that was leaking a “river of blood” into an adjacent river.

Drones can also perform the “dull, dirty and dangerous” work that inhibits law enforcement officers, says Kochersberger.

But the truly exciting applications are those that haven’t yet been thought of, he says.

“When the rules come out fully to allow unmanned aircraft fully integrated into the national airspace, you’re going to see many new applications of these vehicles to help industry that we can’t even imagine.”

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(Copyright 2012 by WTOP. All Rights Reserved.)

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