Why giving the government nearly unchecked power to shoot down drones in the US is a bad idea

On Wednesday, the Senate Homeland Security Committee will markup a bill that gives the Departments of Homeland Security and Justice nearly unchecked power to shoot down drones in the U.S. and take other significant actions domestically with virtually no checks to prevent abuses or misuse. The proposal, which fails at safeguarding rights or safety, is a recipe for disaster. The Senate should reject it and any efforts to attach this bill to the National Defense Authorization Act. 

The public has been treated to promises that soon drones will be delivering burritos, mapping our cities, and quickly reporting breaking news. Drones are certainly more common than they were decades ago, but we are likely still years away from a world in which they are as common as taxis.

{mosads}The need to protect against the safety threats that increased drone use may bring is certainly legitimate. However, any legislation to address these risks must recognize that efforts to counter drones come with their own unique complexities and tradeoffs. Using force to disable a drone could help to secure airspace, but it could also jeopardize the safety of people on the ground.  A drone drifting into a prohibited area may come from a malicious actor or may simply be the result of malfunction or mistake by a benign commercial entity who poses no threat. Limiting drone use in expansive areas could impede legitimate media reporting.   

The bill, introduced by Sen. Rob Johnson (R-Wis.) and co-sponsored by Sen. Claire McCaskill (D-Mo.) and others, does not reflect these complex realities. It provides expansive power to DOJ and DHS to take measures to counter drones, two agencies who are drone novices when compared to agencies like the Department of Defense. (Indeed, it would give greater authority to these agencies than the Defense Department currently has.) Moreover, it would allow these powers to be exercised without sufficient oversight and in ways that violate individuals’ due process, property and privacy rights. 

For example, the legislation would allow DOJ and DHS to take extreme measures — including using force to disable and destroy a drone and then seizing it— without a requirement that such efforts only be taken in cases where there is an imminent threat to life and limb. The departments would only need to demonstrate that they were helping to “mitigate” a safety threat to certain covered assets and facilities, which among other things broadly encompasses areas related to active federal law enforcement investigations, emergency responses, or security operations. This definition is intended to be elastic and dynamic — yet the bill provides no insight on how drone operators are to be informed of such restrictions.

What could go wrong? Plenty. DHS and DOJ could make a mistake, act when unnecessary, or fail to take less extreme measures that would have sufficed. Individual’s safety or property could be jeopardized.

Yet, in cases where such extreme measures are taken, the bill doesn’t mandate a prior or after-the-fact review to ensure that DOJ and DHS appropriately exercised their authority, and it doesn’t include a redress mechanism for people who believe they were unfairly treated.  In addition, the bill provides no recourse in cases where someone’s drone has been improperly seized.  In other words, if DHS or DHS get it wrong, the public may never know or be able to do anything about it. 

In addition, the bill would allow DOJ to DHS to intercept communications and other sensitive communications with a drone without a warrant, notice, or any of the other protections required under the Wiretap Act and other Title 18 provisions. This information could then be used for purposes that have nothing to do with why they were collected in the first place. Such sweeping authority is unnecessary to counter drone threats and simply represents a disregard for the public’s legitimate privacy interests.

Moreover, the departments would also be permitted to seize drones worth thousands without any independent determination from a judge that an individual did something wrong or such seizure was necessary to prevent harm.  This type of expansive power flies in the face of individual’s legitimate property interests.

This legislation is based on a naïve assumption that government agents will always use their authorities properly. Our nation’s Founders and many years of experience have shown that abuses and errors are likely to occur. We should not abandon the wisdom of our Founders, who recognized that checks and balances must accompany new grants of authority to our government.  

Johnson’s bill may have legitimate goals. But, it’s the wrong answer to a good question. It sacrifices privacy, property, and due process rights — all without ensuring that actions taken by the government are actually enhancing safety.  Senators should vote against the bill in committee and oppose efforts to attach it to other legislation. 

Neema Singh Guliani is ACLU legislative counsel.