Who’s Afraid of a Small Drone?

By Alex Pasternack

Dianne Feinstein has a bone to pick with drones, especially since she confronted one on her own lawn.

“I’m in my home and there’s a demonstration out front, and I go to peek out the window, and there’s a drone facing me,” the California Democratic senator recalled to correspondent Morley Safer on a recent “60 Minutes” segment.

Demonstrators from Code Pink, who were protesting NSA surveillance outside Senator Feinstein’s house in July, said it was just a tiny pink toy helicopter.

The confusion points to the problems with understanding and regulating and at least defining drones: a drone and a remote-controlled helicopter are the same thing.

Big, armed capital-D Drones with names like the Predator and the Reaper have earned a shadowy reputation because they’ve been used—largely in secret by the CIA—to dramatically extend the reach of the military (and through lawfare, extend the boundaries of what’s lawful), within politically vacuous spaces. In a way, this use of Drones is not unlike the use of electronic surveillance by other parts of the intelligence community.

But for the purposes of privacy in America, drones are nothing fancier than flying remote controlled GoPro cameras.

“When is a drone picture a benefit to society? When does it become stalking? When does it invade privacy? How close to a home can a drone go?” Feinstein asked Safer.

In an extra segment, Safer asked Feinstein if she believed that “the drones were the worst thing that could happen to our privacy ever.”

“To a great extent that’s the way I feel right now,” she said, “because the drone can take pictures. The sophisticated drone, which isn’t necessarily the drone that’s going to be used by the average person from 17,000, 20,000 feet and you don’t know it’s there.”

https://www.youtube.com/watch?v=Xn7g73m3994

As chairwoman of the Senate intelligence committee, Feinstein, has recently upbraided the CIA for allegedly spying on Congress, but has largely defended US electronic surveillance, saying curtailing it “would place the nation in jeopardy.” In hearings on Capitol Hill last year, Feinstein began raising questions about the use of drones by law enforcement officers and the public.

“When do you have to have a warrant? When don’t you have to have a warrant? What’s the appropriate governmental use for a drone?” she asked—questions that, as the ongoing  Drone Census has shown, have not been addressed publicly by law enforcement agencies like the FBI, which has flown drones without warrants on an untold number of occasions. (Even more basic questions, like how often the FBI has used drones, or which agents are certified to fly them, have also proved elusive, even for the FBI itself.)

The FAA, which normally only governs airspace 400 feet and higher, has said it intends to integrate drones into its regulations by 2015, but only on the basis of safety. Last year, its early attempts to fire a warning shot over the use of drones culminated in a $10,000 fine for Raphael Pirker, a well-known hobby drone pilot who flew a drone  “commercially,” and “recklessly” over a university campus.

But in early March, a federal judge threw out the case, saying that the FAA has not issued any formal regulations on remote-controlled aircraft, and that flying them in the US is not “illegal.”

Still, to fly a drone over “major urban areas [that] contains the highest density of manned aircraft,” the FAA requires a licenses for private individuals and government officials who can prove a need to use it for things like “law enforcement, firefighting, border patrol, disaster relief, search and rescue, military training, and other government operational missions.”

But these regulations only pertain to safety. The application of privacy laws to drone use remains largely uncharted territory, territory that a number of states are beginning to wade into. Already, more than 40 state legislatures have debated bills that ban or curtail the use of civilian drones, drawing lobbyists from industries as diverse as aerospace and hunting (the latter industry wants to protect itself from, among other things, PETA activists with drones).

One important point as the push for privacy regulation continues: drones are doing for civilians something like what the government says wiretapping technology is doing for our spies. It is giving us acces to new data. One thing that the NSA’s technology can’t do is give us views like this:

“I mostly use it to shoot real estate or sports events,” amateur drone pilot Brian Wilson told the Daily News last week as he flew his personal drone above the scene of the building that collapsed in Harlem. “This was the first time I used it for breaking news.” Matthew Schroyer of the Professional Society of Drone Journalism called Wilson’s actions “irresponsible” and “reckless.” The FAA is currently investigating Wilson’s actions.

The NSA’s spying technology may not produce spectacular video, even though both it and the drone involve potential intrusions on personal privacy. But Feinstein has said she sees drones as more risky to privacy than government internet surveillance because they are largely unregulated.

Privacy groups have challenged that view, criticizing what they consider to be Sen. Feinstein’s contradictory views about government surveillance.

“I really wish the DiFi [Dianne Feinstein] that just testified at #droneprivacy hearing could be chair of the Senate Intel Committee,” Amie Stepanovich, the director of the Electronic Privacy Information Center, tweeted after a hearing in January.

Last week, Feinstein lashed out publicly at the CIA and the White House for spying on the computers of the congressional committee investigating waterboarding. (Their completed report, a $40 million, 6,300-page study on the agency’s interrogation and detention program, remains classified.) Surely, Safer asked Feinstein, internet surveillance is more intrusive than drone surveillance, isn’t it?

“I’m not going to get into a debate—they’re both major,” she replied. “The drone is very complicated because it’s new and the technology has moved so fast. And there are no present regulations.”

“The drones are capable of interstate commerce, the drones are capable of monitoring our borders. That’s a good use I believe, spares manpower, is very accurate. But using drones for surveillance becomes another major issue that needs to be worked out, as well as people who have models [RC airplanes] who are going to fly them,” she said.

In the drones segment, “60 Minutes” traveled to Austin, Texas to meet Colin Guinn, CEO of DJI, the company that makes the most popular prosumer drone. But the program missed an opportunity to examine how the law is addressing drones on the state level, including in Texas itself—a place famous for its support of both privacy and minimal government regulation.

Last year, Texas lawmakers passed a law regulating most private drone use, and making it a misdemeanor to have a drone photograph “an individual or privately owned real property… with the intent to conduct surveillance on the individual or property captured in the image.” There’s a $500 fine, which can be averted if the drone owner destroys the images upon being notified of the violation. There are exceptions, for instance, for the use of drones by researchers or by law enforcement agencies, which are not required to get a warrant to use a drone.

In seven other states, including Illinois, Florida, Montana and Tennessee, the police are required to obtain warrants when using drones, and their images have limited use in court. Last year, Virginia declared a two-year moratorium on drone use by law enforcement so it can study the privacy implications.

When I visited Austin last year, before the law was passed, I met many Texans who were eager to get into the drone game, not just because it could mean big business (for making slick real estate videos, for instance), but also because the machines are a boon to researchers and the police.

As one Austin police officer pointed out to me, a drone costs only a fraction of the cost of a piloted helicopter, and doesn’t require as much experience. Already, the Department of Homeland Security uses drones along the state’s Mexican border; earlier this year, the FAA designated Texas A&M University as one of six national drone flight research centers.

“I hate that word, drone,” said Gene Robinson, one of the drone pilots I met in Texas. An experienced pilot of manned planes who operates a group devoted to assisting the police with search and rescue operations, Robinson also manufactures his own drone, the Spectra Flying Wing, a professional craft that can fly for miles on a charge and stream live video back to base. As I wrote then:

Without positive recognition by the public and the government for this technology, he worries, lives could be lost in emergencies and disasters…. Gene’s planes have flown over 29 states and four countries and have made ten recoveries of missing persons. And without the right regulation, companies like DJI would have a better advantage over their American competitors. For him, that fear materialized after he noticed designs suspiciously similar to the Spectra’s on the website of another drone company in China, which he says was selling a pirated version of his plane.

“60 Minutes” talked about the promise of the drone industry with its proponents—it’s expected to be a $6 billion business by 2016—and briefly attempted to pour cold water on the drone fantasy described by Jeff Bezos in another “60 Minutes” segment earlier this year.

“The idea of Amazon or FedEx or indeed Domino’s doing home deliveries in the next couple of years is just pizza pie in the sky,” says Safer. “There are too many issues of privacy, safety, and liability to work out. In the meantime, time and technology wait for no one.”

Apart from the brief mention of safety, Safer and his producer do not examine safety concerns around drones. Public safety is the only reason that the FAA is involved in the regulation of American airspace to begin with. The dangers that a peeping-tom drone poses to the public seem to pale in comparison to the risks posed to the public by a drone that runs out of batteries at 500 feet above a crowded city, that collides into another drone in crowded skies, or that crashes into an airliner during a landing.

That’s precisely what almost happened last year, when an Alitalia pilot coming in for his final approach into JFK Airport spotted a drone in his flight path, at about 1,500 feet. The pilot made no evasive maneuver, but he managed to avoid a collision. The FBI sent out a bulletin looking for the assailant—“The unmanned aircraft was described as black in color and no more than three feet wide with four propellers,” it said—but that was about all the FBI could do.

Regulating drones for safety concerns on the federal level could help provide more clarity when regulating them for privacy on the local level. When the FAA issued its list of six national testing centers in November, it tackled the privacy issue for the first time, insisting that those sites must have publicly available plans for privacy, data use, and data retention, and that privacy practices must be annually reviewed and open to public comments. But the agency did not specify what those privacy practices should be.

Privacy advocates like EPIC and the ACLU have insisted on strict federal laws to tackle drone snooping, including a bipartisan House bill introduced by Rep. Ted Poe (R-TX) and Rep. Zoe Lofgren (D-CA) that would require law enforcement to get warrants before deploying domestic drones, and that explicitly forbids arming them. Another Senate bill introduced by Senator Edward Markey (D-MA) also includes a warrant requirement for police surveillance with drones.

Curtailing privacy risks, said Feinstein, is “going to have to come through regulation—perhaps regulation of size and type for private use. Some certification of the person that’s going to operate it… some specific regulation on the kinds of uses it can be put to.”

A version of this story originally appeared on Motherboard.

The author can be followed at @pasternack

Cover photo:  A hearing of the Senate Judiciary committee Credti: AFP Photo/Brendan Smialowski