FBI’s Warrantless Drone Surveillance

The FBI has responded to Rand Paul’s request for information on how it uses drones.

It provides several paragraphs detailing the use: They’ve used drones in kidnapping, drug interdiction, fugitive, and search and rescue cases, for a total of 8 criminal and 2 national security cases. Use of drones is governed by the Fourth Amendment, the Privacy Act, FAA rules, DIOG, and a bunch of other rules.

But here’s the core of the letter:

Every request to use UAVs for surveillance must be approved by FBI management at FBI Headquarters and in the relevant FBI Field Office. Without a warrant, the FBI will not use UAVs to acquire information in which individuals have a reasonable expectation of privacy under the Fourth Amendment. To date, there has been no need for the FBI to seek a search warrant or judicial order in any of the few cases where UAVs have been used.

Ultimately, this means the FBI has, on 10 occasions, claimed that drones — with what could be far superior sensor equipment and more persistent (and less apparent) surveillance than planes or helicopters — equate to naked eye surveillance. And based on that claim, it has chosen not to have a court review its determination that US persons don’t have a reasonable expectation to be free of this heightened surveillance.

Perhaps the FBI is correct in judging (itself, in secret) that drones, unlike infrared surveillance but like overhead plane surveillance, don’t go beyond people’s reasonable expectation of privacy.

But it is notable that they chose to make such determinations without asking either Congress in general or specific courts to review their determination.

That’s not in the least surprising. It is consistent with what they have done, for example, with GPS tracking. But it does show that even with something as contentious as drones the FBI — and the government generally — continues to pursue a surveil first ask permission later approach.

9 replies
  1. der says:

    Of course about that surveil first part, the Justice Department (hack) will show Diane Feinstein, Mike Rogers, and Nancy P. secret classified photos of really bad people buying petrol and ring-dings, meaning something. So all’s good, legislative oversight, go shopping advocates.

  2. Jim White says:

    I finally got around to looking at some of the stories I’ve seen flitting by on Twitter about the JLENS blimps that will be put at 10,000 feet over Washington, DC. The stories all say the blimps (which appear to be deployed in groups of two) are for radar-based surveillance of aircraft and potential missiles, I can’t help thinking that they also will be equipped with the latest imaging technology. Have a look at this video for what can be done now with this kind of technology. It fits precisely with the point you are making here and suggests that all of DC will be under very close surveillance 24/7:

  3. der says:

    From Wikipedia research many Manpads (man portable missile systems) have a 3 mile range and maximum airspeed of roughly 700 mph. All this means that a “terrorist” can be standing anywhere in the District limits, get Washington Monument coordinates from Google Earth, fire off a potential missile and the blimp operator has 15 seconds to respond and intercept. Else on stand your ground auto-pilot the computer shoots down anything that looks suspicious, like a great blue heron, or American eagle. Another successful grifting game for the geniuses that rule.

  4. What Constitution? says:

    @der: Careful knockin’ the ring-dings, there. I clearly recall that former Attorney General Mukasey likes ring-dings, as we all learned from the biting and insightful piece by AP reporter Laura Jakes back when he was shielding torturers from prosecution. It can’t be all that surprising to learn that our government feels a need to track ring-ding purchases, can it? The Terraists hate us for our ring-dings, you know, and their purchase for potentially illicit use certainly concerns me, anyway.

  5. joanneleon says:

    Are they like those secret FISA warrants? Yeah, that “we always get warrants” line has substantially less credibility nowadays.

  6. Jessica says:

    I contend that even if a certain activities I engage in can reasonably be considered “public” (e.g. driving down the freeway) there is a distinct difference between whether it’s public to other citizens and whether it’s the business of the government. I guess what I’m trying to say is that I personally don’t equate “the citizenry” with “the government”. It’s possible that opinion is worth nothing, from a legal standpoint. But it’s also possible that it is besides the point, if the government were to only use such “public” activities against me after obtaining a warrant. When this is done in secret, or circumvented b/c an agent decides it’s worthy of being circumvented, then there is a temptation to grow the scope of surveillance, b/c why not? What’s stopping you?

    That may not make any sense or even be sensible, but it’s something that bothers me so much, this issue of expectation of privacy and equating my neighbor’s view of my goings-on with the governments ability to do the same: my neighbor doesn’t enforce the law but the gov does with impunity.

    (Again, I recognize this is a laymen’s view – it’s probably well-established that the courts would say I’m full of it.)

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