There are absolutely no rules or limits governing the use of drones by federal law enforcement agencies, the U.S. Department of Justice’s own inspector general acknowledged in a recent audit.
Former FBI Director Robert Mueller admitted that the agency is still writing privacy guidelines.
“We’re exploring not only the use, but also the necessary guidelines for that use,” Mueller told reporters shortly before he left office on Sept. 4.
At least the FBI is trying to create some rules. Officials at the Bureau of Alcohol, Tobacco and Firearms (BATF) told auditors there was no need to write privacy guidelines. The FBI initially wanted to do the same thing but apparently changed its mind because of bad publicity.
The BATF is now writing a checklist of guidelines, The Los Angeles Times reported. It isn’t clear whether the BATF actually has any drones or uses them for surveillance, although it is known the FBI does have drones. Federal use of drones is increasing.
Under present law, drones can be used without a search warrant. The FBI’s current position on drones is that there is “no reasonable expectation of privacy” in areas of private property open to public view. That includes any portion of a yard or field that can be seen from public view. This thinking is based on Supreme Court rulings about manned aerial surveillance vehicles.
If that wasn’t scary enough to civil liberties groups, there are some judges who believe there is no reasonable expectation of privacy when windows are open to public view. Manhattan Judge Eileen Rakower actually ruled that artist Arne Svenson had a right to take pictures of his neighbors through their windows and sell the pictures as “art.”
By that legal logic, drones could be used to peer through windows without a warrant under current law. The Associated Press summed up the FBI’s position best when it wrote, “The Agency also wrote that a warrant would not be needed because drones don’t physically trespass on private property” – meaning, in theory, a drone flying an inch above the ground would not need a warrant to watch you. That’s absolutely frightening given the advances in miniature drone technology.
US Sen. Charles Grassley, R-Iowa, said earlier this summer that the “right of privacy is at stake” in the FBI’s use of drones.
Justice Department and Drones
The inspector general’s office discovered that the U.S. Justice Department has spent around $5 million on drones for its own agencies. Around $3 million was spent by the FBI and $2 was spent by other agencies. The department also gave local law enforcement agencies around $1.26 million in grants for drones.
Most federal law enforcement drones, though, are not under the Justice Department’s control. Instead, they’re operated by the Department of Homeland Security, which has responsibility for U.S. Customs and Border Protection – the federal police agency with the most drones. That means those drones were not included in the inspector general’s report.
The LA Times reported that the FBI was able to use Customs and Border Protection predator drones that patrol the Canadian border for surveillance inside U.S. borders. Those drones fly over the houses of many average Americans.
Customs and Border Protection has considered adding weapons to its drones in the past. Customs and Border Protection drones are often used to conduct surveillance for other federal agencies such as the FBI.
Details of Drone Use Unknown
Exactly how the drones are being used is not known. The FBI has said that it has used drones to take pictures of hostage situations and other crime scenes. Yet LA Times reporting indicates that it may have been using drones to track individuals.
“In February, the FBI requested that a Department of Homeland Security Predator drone based in Grand Forks, N.D., collect aerial images along its route through the western end of Washington state,” Times reporter Brian Bennett noted. It resulted in an arrest. It also indicates the FBI is using drones more than it acknowledges.
Circumstantial evidence indicates that drone surveillance is much more pervasive than the inspector general’s report indicated.