Domestic Drones Demonstrate a Need for New Privacy Laws

Technology forged for gathering battlefield intelligence and waging war is coming home-and the powers that be seem pretty blithe about it.

Last week, in its report on the 2013 Defense Authorization bill, the Senate Armed Services Committee called for allowing drones to operate "freely and routinely" in U.S. airspace.

"Large numbers of [UAVs] now deployed overseas may be returned to the United States as the conflict in Afghanistan and operations elsewhere wind down in coming years," the Committee Report read.

Drones "have clearly demonstrated their immense value to DOD military capabilities in the global war on terrorism," and they're increasingly "contributing to missions of agencies and departments within the United States….The pace of development must be accelerated," the report concluded.

Technology forged for gathering battlefield intelligence and waging war against terrorists is coming home—and the powers that be seem pretty blithe about it.

"It's great!" Virginia Gov. Bob McDonnell said on WTOP's "Ask the Governor" program last month: "That's why we use [UAVs] on the battlefield …. If you're keeping police officers safe, making it more productive and saving money… it's absolutely the right thing to do."

"Drones are a legitimate form of law enforcement," Rep. Peter King, R-N.Y., told CNN's Candy Crowley Sunday: "You don't have an expectation of privacy if you're in the open."

True enough: as Stanford Law's Ryan Calo notes, under current law, "citizens do not enjoy a reasonable expectation of privacy in public, nor even on the portions of their property visible from a public vantage."

That's a problem. Drone technology dramatically enhances the government's ability to monitor citizens in public places and on their own property—and privacy law hasn't kept pace with technological change.

Law enforcement agencies already have access to some 146 commercial drones—and that may be just the beginning as drones get smaller and more capable.

Defense contractor AeroVironment is perfecting the "Nano Hummingbird," a drone that weighs less than an AA battery and is capable of alighting on a window ledge to record video.

The "Gorgon Stare" system, under development by the Air Force, features a drone-mounted, Argus-eyed camera array designed for full-spectrum surveillance.

"Gorgon Stare will be looking at a whole city, so there will be no way for the adversary to know what we're looking at, and we can see everything," an Air Force officer bragged to the Washington Post. "The Department of Homeland Security is exploring the technology's potential, an industry official said."

Creepy? Sure. But the dystopian fears these metal sentinels provoke might force us to get serious about new legal protections. Privacy violations in the form of massive data mining and the like "tend to be hard to visualize," Stanford's Professor Calo observes. The specter of domestic drones "could be just the visceral jolt society needs to drag privacy law into the 21st century."

Indeed, Americans are becoming increasingly unsettled by this sort of military "mission creep." In February, a Rasmussen poll found voters opposed to the use of drones for domestic surveillance, 52 to 30.

Some legislators are taking note. Last week, Rep. Austin Scott, R-Ga., introduced a bill to restrict domestic use of drones. His "Preserving Freedom From Unwarranted Surveillance Act" leaves space for legitimate public safety uses of UAVs in "exigent circumstances" like hostage situations or missing person hunts. But it provides that "a person or entity acting under the authority of the United States shall not use a drone to gather evidence or other information except to the extent authorized in a warrant."

That's a start—but we'll need continual vigilance to ensure that technologies developed for foreign wars aren't turned into tools of domestic social control. As James Madison warned at the Constitutional Convention, "The means of defense against foreign danger have always been the instruments of tyranny at home."

Gene Healy is a vice president at the Cato Institute, the author of "The Cult of the Presidency," and a columnist at the Washington Examiner, where this article originally appeared.