Better Regulating Drone Use Requires Communication, Not Surveillance

In 2018, Congress gave the Departments of Justice and Homeland Security sweeping new authorities to destroy or commandeer privately-owned drones, as well as intercept the data it sends and receives. EFF objected to The Preventing Emerging Threats Act of 2018 (S. 2836, H.R. 6401) because, among other things, the bill authorized DOJ and DHS to “track,” “disrupt,” “control,” “seize or otherwise confiscate,” “mitigate” or even “destroy” unmanned aircraft that pose a “credible threat” to a “covered facility or asset” in the U.S.—without defining what many of those terms mean.

The definition of “credible threat” was left entirely to the discretion of DOJ and DHS. This means we have no real idea what the threshold would be in order to legally allow authorities to destroy your drone. And the term “covered facility or asset” was defined so broadly it could extend to all federal property. EFF was also concerned that the bill would authorize the government to “intercept” or acquire transmissions to and from the drone, which could be read to include capturing video footage sent from the drone—a major threat to journalists who use this technology.

Unfortunately, with very little public debate, the Preventing Emerging Threats Act of 2018 was included in the FAA Reauthorization Act of 2018 (PL 115-254), which passed Congress and was signed into law that same year. The one bright spot was that the authorities were set to expire in 2022, giving Congress another chance to define the relevant terms, provide transparency in the process, and determine the appropriate, limited authorities for these agencies, as well as their necessary safeguards.

The 2018 law was already too broad, exempting officials from following procedures that ordinarily govern electronic surveillance and hacking, such as the Wiretap Act, Electronic Communications Privacy Act, and the Computer Fraud and Abuse Act.

But somehow, the Administration’s current proposal, introduced in the Senate as “The Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act” (S. 4687), is even worse.

The proposal would give long lasting, sweeping surveillance powers to multiple federal agencies, plus certain state and local law enforcement agencies, plus contractors, while also eliminating the limited safeguards that currently exist for electronic surveillance. In other words, the Administration proposes to give itself permanent, unfettered access to the communications of private drones, as well as the drones themselves, without having to get a warrant or explain their actions to the public.

Such vague, unchecked government authority intrudes on the Fourth Amendment right to private electronic communications. It also raises significant First Amendment concerns. Reporters covering police activity or misconduct in an unspecified “public area” could have their footage seized without any due process. Professional photographers or filmmakers who happen to be in the wrong place at the wrong time filming bird migration near the U.S. border or even photographing a wedding close to a government outpost could have their equipment destroyed with no redress.

In some circumstances, the government may have legitimate reasons for engaging drones that pose an actual, imminent, and narrowly defined “threat.” But what the Administration is asking for is beyond reasonable. Whatever threat private drones may pose to public safety does not require handing the government, as well as contractors and private businesses, unfettered authority to destroy, commandeer, or eavesdrop on private drones. 

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Categories: Electronic Frontier Foundation

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