There has been much talk about the use of drones by police within the United States and by the military abroad, but a subject that gets a lot less play is the use of drones at the US border. As someone who lives near the border, in sunny Los Angeles, I'm ready for a thorough debate. As a city dweller, I find myself with some unlikely bedfellows, too, because a recent Associated Press video showed cattle ranchers at the border are sick of having government cameras on their land and drones flying over their ranches attempting to find illegal immigrants.
In a country where politicians harp constantly on the need to keep “illegals” out, a cool new toy is hard for them to deny. Border patrol agents have Predator drones at their disposal, and using them has the potential to become a serious breach of privacy---but it also could be a terrific tool for other needs, if it's done right.
I've been writing about drones and surveillance for years, and I've discussed these topics with some of the nation's top experts. When it comes to giving federal agencies like the US Customs and Border Protection some Predator drones for surveillance, one major concern is “mission creep.” That's when a federal agency decides to loan its drones to a state or local agency to assist with some objective, as seen in North Dakota when the border patrol loaned a Predator B to a sheriff to help him wrangle a few missing cows. It is clear they will lend the drones only to those truly in dire straits. Drones and cattle are becoming inextricably tied.
Legislation like the Secure Our Borders First Act that recently reared its ugly head in Congress seeks to significantly expand the use of drone surveillance at the border. The bill would add more drones to the border patrol's fleet and extend radar capabilities. Such legislation can be like steroids for the surveillance state. If that legislation doesn't pass, it seems likely future legislation will appear.
Drones can be equipped with “facial recognition technology, live-feed video cameras, thermal imaging, fake cell phone towers to intercept phone calls, texts and GPS locations, as well as backend software tools like license plate recognition, GPS tracking, and facial recognition,” as the Electronic Frontier Foundation notes. And we've seen these technologies used by government agencies in similar situations, like when the US Marshals Service used Stingray cell phone surveillance equipment in small planes to capture everyone's metadata on the ground below. That's a little concerning, to put it mildly.
Border agencies are becoming known for denying Freedom of Information Act requests that would reveal more about these programs, preventing citizens from understanding what these agencies are doing with drones. If you value privacy and have worries about an expanding drone surveillance program, drones being shared by agencies and the lack of transparency are concerning, but that's not to say drone use at the border should be banned.
Congress should draw up border drone legislation to protect privacy. To keep drones meant for the border from doing surveillance operations well beyond their intended purpose, we need regulations to prevents mission creep. I do not want to be driving down the highway in Los Angeles and see a CBP Predator drone flying over, attempting to locate some guy who stole candy from a convenience store. Fourteen states have passed laws regulating how police can use drones, and others are considering similar legislation. It only seems right that agencies be restricted to using drones they own, so such laws are not circumvented in any way. Ryan Calo, an assistant professor of law at the University of Washington who has done extensive research on drone technology, recently confirmed for me that this is a top priorities. Here's what that legislation should do:
1. The government should limit how far drones used by border agencies can stray from the border. Many civil liberties organizations have cited legal precedent that claims the “border” is any land within 100 miles of the geographical border---meaning border drones could be operating further into the interior of the United States than one would expect. “It continues to be surprising to me that CBP would feel free to use this technology so extensively outside of the mission of protecting the southern and northern US land borders from illegal entry, which is what most people think the domestic use of Predator drones is confined to,” Jay Stanley, a senior policy analyst at the ACLU's Speech, Privacy & Technology Project, wrote last year. Saying the “border” stretches 100 miles into the country is akin to saying Phoenix or Pittsburgh are beachfront property. However, drones used by border agencies don't seem to be restricted to even those lofty limits.
“There are some long-standing court cases that basically extend the border 100 miles interior of the United States, sometimes even farther than that... but aerial surveillance isn't governed by the Fourth Amendment,” Gregory McNeal, an associate professor of law at Pepperdine University, told me. In a Brookings Institute paper concerning drone surveillance, McNeal cites the 1986 U.S. Supreme Court case California v. Ciraolo that ruled warrantless surveillance by a small plane flying at an altitude of 1,000 feet was not a unreasonable search and seizure, because it was flying in “publicly navigable airspace.” “There are no court cases that tell us drones should be treated differently,” McNeal said. Basically, he says, agencies operating drones at the border could fly as far into the U.S. as they want.
2. Surveillance border agencies should specifically be limited to flying their drones no more than 10 miles from the border. Those I've spoken to agreed this could be a reasonable and simple solution. It would still allow drones to pursue people entering the country illegally; police on the ground or in the air can handle anything beyond that range.
3. Drone use at the border should also be limited. A recent report from the inspector general of the Department of Homeland Security, which oversees Customs and Border Patrol, featured a title that reminded me of my middle school report cards. The report, CBP Drones are Dubious Achievers, found drones operating at the southern border cost about $13,000 per hour to operate and accomplish little of what they were intended for. Border patrol drones should be flown for specific missions, as to prevent a costly program of constantly surveilling for little reason.
4. This one may seem obvious, but drones at the border should also not have weapons of any kind. Yet there has been some discussion of arming border drones in the past. “There is pretty much overwhelming consensus that drones should not have lethal or nonlethal weapons [when operating inside the United States], which makes sense because we've had manned helicopters for a long time, and we don't see manned helicopters with weapons mounted on them either,” McNeal told me. If you wouldn't feel comfortable seeing a helicopter flying over your house with a machine gun turret attached to it, you shouldn't have to get used to drones having them.
5. Finally, the border drone program should be transparent. No longer should border agencies be allowed to reject information requests from journalists and nonprofits for dubious reasons, and a system should be set up that allows access to certain footage. Perhaps a system where registered nonprofits, lawyers and journalists who sign up can see footage relating to an incident could be beneficial.
Because one thing we can't overlook is that drones at the border can be invaluable. “Let's not have a failure of imagination of how useful these things are,” Ryan Calo said to me recently. “What about drones that find other drones because people are sending crystal meth over the border?” he asked.
So far, most drone use at the border has focused on high-flying Predator drones like those the US uses in battlefields, and those can be useful in many situations, but the use of quadcopter drones at the border could also provide benefits. Quadcopters can fly lower than Predator drones, and they can stay in one place for an extended period. “You can imagine human rights groups who are trying to find people who may have gotten lost while trying to come into the United States being able to find those people to prevent them from dying of thirst in the desert,” McNeal said.
Predator drones, and possibly quadcopter drones, operated by border agencies could provide helpful information for what's going on at the border, whether that amounts to using data they collect to analyze weather in an area, wildlife populations, or for search and rescue. And I write that as someone who is terrified of a quadcopter peering through my window while I'm dancing naked with a beer in my hand. But I understand that my fear shouldn't interfere with seeing this technology for the complex thing that it is. Even privacy advocates should not choose the knee-jerk reaction of banning government use of drones completely.
There are serious and impactful ways that government drones at the border could benefit society, but we must make sure there are proper limits. If you're worried about someone getting stabbed, you don't just ban all knives, because you might need one when you're cooking.
