EFF lawyer: 'They could potentially conduct constant surveillance'

By MATEUSZ PERKOWSKI

Capital Press

The ability of unmanned aerial vehicles to tirelessly monitor vast expanses of land has spawned alarm among farm and civil liberties groups about the potential for intrusions on privacy.

One of the main advantages of UAVs is that they can be flown remotely or operate autonomously for prolonged periods. One type of electric-powered drone can remain airborne for more than two days and be recharged in the air using a laser, according to the Congressional Research Service.

Such abilities allow UAVs to conduct far more extensive monitoring than piloted planes or helicopters, which would be too expensive to fly without a specific concrete suspicion of wrongdoing, said Trevor Timm, an attorney and activist for the Electronic Frontier Foundation, a nonprofit privacy and free speech group.

"They're much cheaper and will eventually be able to fly for much longer periods of time," Timm said. "They could potentially conduct constant surveillance."

In agriculture, the concern is that the U.S. Environmental Protection Agency will use such "fly overs" to justify increased scrutiny of compliance with the Clean Water Act and Clean Air Act, said Dale Moore, deputy director of public policy for the American Farm Bureau Federation.

"The next thing, the feds are showing up at your door with some kind of investigation or enforcement action," he said.

In the future, UAVs are expected to be equipped with thermal imaging and radar systems that let them "see" through walls, according to the CRS report.

While technological advances will surely raise legal questions about privacy in mainstream law enforcement, enhanced regulatory enforcement won't depend on such advances.

Under the "open fields" legal doctrine, areas that are clearly visible to government officials from a "public vantage point" aren't covered by the constitutional prohibition against unreasonable searches, the CRS report said.

Due to the potential for inaccuracies using aerial surveillance, it should not be the sole justification for enforcement by the EPA or other agencies, said Moore. "It can inform the process, but our policy says you can't take action on that alone."

In light of the more extensive surveillance capacity of UAVs, their use should be subject to a higher legal standard -- if authorities want to regularly monitor a dairy or feedlot, they should get a warrant, Timm said.

"People rightly recoil when they think about drones flying overhead 24/7," he said. "In our view, that's an infringement of people's liberty, whether you're walking down the street or own a farm."

In 2012, Mike Johanns, a former USDA secretary and Republican senator from Nebraska, unsuccessfully proposed banning UAV surveillance without a warrant. A similar bill has been introduced in Congress this year.

Moore said he would like to see authorities notify and get consent from farmers for reconnaissance over their land, or at least inform state agriculture agencies about their plans.

"At least there is an informed process and we kind of get away from that Orwellian feeling," he said.

Rather than trying to solve this issue in the federal courts or through regulation by the Federal Aviation Administration -- which doesn't have much experience with privacy issues -- Congress should enact legislation before drone surveillance becomes widespread, Timm said.

"We can stop this problem before it starts, essentially," he said.