Send in the Drones

By Eva Hershaw
For Reporting Texas and the Texas Observer

Congress recently sent a clear message to manufacturers and operators of unmanned aerial vehicles (UAVs), more commonly known as drones: Welcome to civilian airspace.

The U.S. government has until now used its more than 7,000 drones primarily for military surveillance and overseas strikes, but unmanned aircraft could soon be a common sight over the United States. Congress recently passed the Federal Aviation Administration Modernization and Reform Act of 2012, landmark legislation that will open domestic skies to drones. President Obama signed the bill into law on Feb. 14. An amendment buried in the bill calls on the FAA to work expediently with federal agencies to put more drones in the sky.

Proponents of drones laud their achievements in overseas operations and claim that they could become a cost effective and adaptable tool for use in domestic airspace. Though recent media coverage has focused on drone use by local law enforcement for surveillance, advocates argue that unmanned vehicles have many potential uses, including for agriculture, humanitarian efforts, news coverage, and search and rescue operations.

But civil rights organizations and privacy experts are calling foul, arguing that federally sponsored domestic drone use will mark an unprecedented and, if not properly regulated, a pervasive invasion of Americans’ privacy.

“These are drones that can see in the dark, through opaque surfaces, and have high powered cameras,” said Catherine Crump, staff attorney with the American Civil Liberties Union in New York. “This raises the possibility of invasive surveillance that Americans have not been exposed to.”

Drone manufacturers and their proponents in Congress dismiss concerns over privacy, arguing the technology is no different than helicopter surveillance. But harmless or not, drone production is also big business. The Pentagon has invested heavily in the unmanned aircraft, growing its drone fleet from just 50 to more than 7,000 UAVs in less than a decade. The growth shows no signs of slowing. A study released last year by TEAL Group, an industry analysis firm, estimates the value of the drone market at $5.9 billion and forecasts a total worth of $94 billion in the next 10 years.

Support for drones has been steadily growing in Washington as well. There is even an Unmanned Systems Caucus in Congress, a 54-member group founded in 2010, also known as “the drone caucus.” Their main mission: educate Congress and the public about the “overwhelming value of unmanned systems” and support the development of such systems in civilian arenas. Of the 54 caucus members, six are Texans. Only California, with 11 members, has more representation. The recent amendment to the FAA bill calling for increased domestic drone use was introduced by Rep. Candice Miller, a Michigan Republican and member of the drone caucus.

“We’ve seen their successes in Afghanistan, Pakistan, Iraq and other places,” said Henry Cuellar, a Democrat from Texas’s 28th district and co-chair of the drone caucus. “We think of them as being used for security, but besides that they can be used for fire fighting, surveillance, aerial photography, agricultural applications, news coverage and many other things. That is why we formed the Unmanned Systems Caucus.”

This sentiment has been strongly supported by the defense and aerospace industries, looking to take advantage of lucrative opportunities with local law enforcement and commercial clients. Ben Gielow, a lobbyist and for the Association for Unmanned Vehicle Systems International, the leading trade association for all unmanned systems, drafted the language for the final FAA amendment. “Thankfully, a lot of our suggestions were taken,” Gielow says. “A lot of U.S. manufacturers would have moved abroad if they didn’t gain access to the market here.”

Vanguard Defense Industries, located in Spring, Texas, manufactures drones for the U.S. and allied militaries, as well as for commercial uses. The company is one of the first drone manufacturers to contract with local law enforcement in the U.S. In 2011, the drone that Vanguard built for the Montgomery County Sheriff’s Department generated national media attention.

“Many departments have had a need for air wings but couldn’t afford them,” said Michael Buscher, CEO of Vanguard. “[Department of Homeland Security] grants or drug seizure money can be used to buy UAVs, which are much cheaper than helicopter maintenance.”

Now Vanguard is hoping to work with the congressional drone caucus to further encourage the expansion of domestic drone use throughout the U.S. “We have direct interaction with the UAV caucus, it’s co-chair, as well as members of the caucus,” Buscher said. “We see our role as helping them to make better decisions.”

The industry is offering more than just information, though. Defense and aerospace manufacturers have also offered their financial backing. The six Texas members of the drone caucus received nearly $700,000 in campaign donations in the 2010 and 2012 campaign cycles from the defense or aerospace industries, according to the Center for Responsive Politics. Silvestre Reyes, an El Paso Democrat, topped the list with $334,450 in donations from defense and aerospace manufacturers.

In many ways, Texas has been on the forefront of domestic drone development. As a border state, Texas covers 1,200 of the 2,000-mile border that the U.S. shares with Mexico. The Department of Homeland Security has long used drones for surveillance and border security along the Rio Grande. It is another reason that Cuellar, who is on the House Homeland Security Committee, says he supports expanded drone surveillance beyond Texas’ border region.

“We have had good experiences on the battlefield, and I have seen the benefit of UAVs in my district along the border,” Cuellar said. “People understand the importance of surveillance in Texas.”

Even the FAA, which had earlier expressed safety concerns, is on board with the drone boom. “The decision marks a real sea change,” said Crump of the ACLU. “The bill is urging the FAA to integrate drones into the airspace in a way that the FAA has not, largely, been supporting.”

The drone amendment streamlines the federal certification process for operating drones in domestic airspace. By 2015, it will be much easier for commercial and government drone operators to obtain a permit from the FAA to fly unmanned aircraft.

“We’re aware of the demand for unmanned aircraft,” said Les Dorr Jr., spokesman for the FAA. “The mission of the UAV, whether it is humanitarian, medical, or for law enforcement, is really secondary to whether the aircraft can operate safely.”

For the ACLU, concerns over safety far outweigh questions of adequate privacy protection. In its recently released report, “Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft,” the ACLU claims that affordable drones, welcomed into in domestic airspace by the FAA, will lead to an unprecedented level of government surveillance. While the ACLU doesn’t oppose the use of drones in all circumstances, the group’s main concern is the lack of comprehensive state and federal laws to protect Americans’ privacy.

The Fourth Amendment to the Constitution, which prohibits search or seizure without probable cause, likely wouldn’t apply to most drone surveillance. Courts have ruled that the Constitution allows surveillance of those areas considered “open fields,” which can include the backyard of a private residence. “If you look at the Fourth Amendment, a lot of this has all been adjudicated by the Supreme Court,” Cuellar said. “We’re talking about cameras used for surveillance, which have been around for a long time.”

Yet civil rights groups worry that our existing privacy laws may not be strong enough to protect privacy in an age of unmanned aircraft armed with high-tech cameras that make aerial surveillance cheaper and easier.

John Villasenor, a senior fellow at the Brookings Institution and a professor of electrical engineering at UCLA, is concerned that the current legal framework is insufficient in a world where drones are prevalent and cheap. “I think UAVs are collectively really promising. They have the potential to acquire life-saving imagery, and that’s something we should support,” he said. “But we should not flatly deny that there are privacy concerns, because there certainly are.”

Meanwhile, the drone caucus, and Texas, in particular, is growing its armory. Cuellar reports that the state acquired a Predator drone (worth $5 million to $10 million, wingspan 47 feet) at the beginning of the year for use by U.S. Customs and Border Patrol. He hopes to have four to six in Texas by the end of 2012.