Drone Surveillance: "Tracing Our Journeys"?

by Newland Smith

“Lord, you have searched me out and know me; you know my sitting down and my rising up; you discern my thoughts from afar. You trace my journeys and my resting-places and are acquainted with all my ways … Where can I go then from your Spirit? Where can I free from your presence?”  (Psalm 139 : 1-2; 6)

These verses bear witness to the Israelites’ conviction that Yahweh, their creator and protector, knew their innermost thoughts and even “traced their journeys.”

God’s intimate presence is also captured in the following opening words of the Collect for the Holy Eucharist: “Almighty God, to you all hearts are open all desires known, and from you no secrets are hid.” (Book of Common Prayer, p. 355) God’s creatures even though countless times they were tempted to be like God, are reminded of the limits God placed on them. God’s creatures have no business in letting their government act like God as it begins to employ drones to track the journeys of its citizens. Hence there is urgency in this call to “Awake to Drones.” Too many American citizens have become complacent and acquiescent as their government in the name of the war against terror infringes on their civil liberties.

Being involved in the work of the Committee against Political Repression for the past two years, I am very aware of the invasiveness of the FBI in the lives of those who speak out in opposition to particular US foreign policies. For example some of the twenty-three antiwar and peace activists who were issued subpoenas to appear before a Grand Jury in Chicago are Colombian and Palestinian solidarity workers. Many helped organize the protests at the 2009 Republican National Convention in St. Paul, Minnesota. Ninety-eight members of the faith community signed the statement, “Chicago Faith Community Statement on the FBI Raids and Grand Jury,” which ended with these words, “We denounce the use of fear and the far-reaching labeling of critical dissent as ‘terrorism’ that tramples on not only our right, but our duty to dissent as people called to a moral standard of justice for all.” I remember carrying a sign with the words, “FBI raids and Grand Juries chill God’s Call to peacemaking,” at the rally in front of the FBI Chicago headquarters on Roosevelt Road just two weeks after the initial FBI raids on the homes of some of those issued subpoenas. As a member of the Episcopal Church’s Standing Commission on Social Justice and Public Policy, I helped introduce a resolution on American civil liberties to the 77th General Convention this past summer. The third resolve of this resolution which was adopted reads as follows: “That the General Convention express its concern through its Office of Government Relations that the use of the antiterrorism and Effective Death Penalty Act, the Patriot Act, and the Supreme Court decision in Holder vs. Humanitarian law Project have a chilling effect on God’s call to peacemaking and unduly impact the Arab, Palestinian, and Muslim communities in the United States.”

Jesus tells his disciples to fear not yet as Americans our government increasingly is making us fearful of terrorists. John Mueller names this fear as “terrorphobia.” (Mueller, “Terrorphobia: Our False Sense of Insecurity,” The American Interest, May/June 2008.) Mueller in his article also states that by 2008 the United States had spent more than $300 billion on the Department of Homeland Security which he describes as a second defense department. The very likely domestic use of aerial drone spy planes will simply exasperate our fear of potential terrorists.

On February 12, 2012 President Obama signed into law the Federal Aviation Administration Air Transportation Modernization and Safety Improvement Act (HR 658). This act would, in part, allow domestic use of aerial drone spy planes. Congress also passed a $63 billion Federal Aviation Administration appropriations bill that could result in 30,000 unmaned aerial vehicles across the United States by the end of this decade for warentless aerial searches. Robert Cook writes, “The Department of Homeland Security has stated, “the primary objective of WAASS (Dept. of Homeland Security) Wide Area Aerial Surveillance System) is to provide persistent, long-term surveillance over urban and rural terrain. The surveillance system will have electro-optical capability for daylight missions, and infrared capability for day or night operations. The sensor shall integrate with an airborne platform for data gathering. The imaginary data will be displaced at the DHS Operations later, with forensic analysis within 36 hours of the flight.” (More at Wide Area Aerial Surveillance System (WAASS) solicitation.

As early as December 2011 the ACLU issued its report, “Protecting Privacy From Aerial Surveillance : Recommendations for Government Use of Drone Aircraft”: Report by Jay Stanley and Catherine Crump. The authors point out the potential threat to Americans’ privacy and say, “the Courts should impose limits on the use of drones for surveillance, prohibiting them from becoming pervasive.” (p. 13) The report ends by recommending at a minimum “the following core measures be enacted to ensure that this [imposition of “rules, limits and regulations on UAVs as well in order to preserve the privacy Americans have always expected and enjoyed.”] happens:

- Usage restrictions. UAVs should be subject to strict regulation to ensure that their use does not eviscerate the privacy that Americans have traditionally enjoyed and rightfully expect. Innocent Americans should not have to worry that their activities will be scrutinized by drones. To this end, the use of drones should be prohibited for indiscriminate mass surveillance, for example, or for spying based on First Amendment-protected activities. In general, drones should not be deployed except:

Where there are specific and arguable grounds to believe that the drone will collect evidence relating to a specific instance of criminal wrongdoing or, if the drone will intrude upon reasonable expectations of privacy, where the government has obtained a warrant based on probable cause; or

Where there is a geographically confined, time-limited emergency situation in which particular individuals’ lives are at risk, such as a fire, hostage crisis, or person lost in the wilderness; or

For reasonable non-law enforcement purposes by non-law enforcement agencies, where privacy will not be substantially affected, such as geological inspections or environmental surveys, and where the surveillance will not be used for secondary law enforcement purposes.

- Image retention restrictions. Images of identifiable individuals captured by aerial surveillance technologies should not be retained or shared unless there is reasonable suspicion that the images contain evidence of criminal activity or are relevant to an ongoing investigation or pending criminal trial.

- Public notice: The policies and procedures for the use of aerial surveillance technologies should be explicit and written, and should made public. While it is legitimate for the police to keep the details of particular investigations confidential, policy decisions regarding overall deployment policies – including the privacy tradeoffs they may entail – are a public matter that should be openly discussed.

- Democratic control. Deployment and policy decisions surrounding UAVs should be democratically decided based on open information – not made on the fly by police departments simply by virtue of federal grants or other autonomous purchasing decisions or departmental policy fiats.

- Auditing and effectiveness tracking. Investments in UAVs should not be made without a clear, systematic examination of the costs and benefits involved. And if aerial surveillance technology is deployed, independent audits should be put in place to track the use of UAVs by government, so that citizens and other watchdogs can tell generally how and how often they are being used, whether the original rationale for their deployment is holding up, whether they represent a worthwhile public expenditure, and whether they are being used for improper or expanded purposes.

Congress is beginning to wake up the implications of the Federal Aviation Administration Air Transportation Modernization and Safety Improvement Act. In June Senator Rand Paul introduced S. 3287, “the Preserving Freedom from Unwarranted Surveillance Act of 2012.” This act would "prohibit the uses of drones by the government except when a warrant is issued for its use in accordance with the requirements of the Fourth Amendment with the following exceptions: 1) patron of national borders; 2) when law enforcement possesses reasonable suspicion that under particular circumstances, swift drone action is necessary to prevent 'imminent danger to life;'; 3) high risk of a terrorist attack." This act also "specifies that no evidence obtained or collected in violation of this Act can be used/admissible as evidence in a criminal, civil, or regulatory action."

A month later Representative Poe of Texas introduced H.R. 6199, “Preserving American Privacy Act of 2012.” This Act would prohibit any Federal agency from authorizing “the domestic use of an unmanned aircraft … for law enforcement purposes or for surveillance … except pursuant to warrant and in the investigation of a felony.” (Sec. 2) The next three sections address the “Limitation on domestic use of Drones in Federal Criminal Investigations,” “No use of Drone Evidence in Administrative Hearings,”, and “No Authorization for Domestic Use in Private Surveillance.”

Stay tuned for updates on the status of these two bills when Congress returns to work in September.