It’s rare that a congressional committee tasked with overseeing homeland security approves a bill that would not only authorize sweeping surveillance, but also could pose a significant threat to public safety. But that’s exactly what the Senate Homeland Security and Governmental Affairs Committee did when it approved the slightly amended version of the Preventing Emerging Threats Act of 2018 (S. 2836) by voice vote on June 13 after only five minutes of debate.

The committee is seeking to address the legitimate concern that a drone could pose a threat to the security of government buildings and land or to public safety. However, the response of the bill’s proponents would create many more problems than it would solve. S. 2836 would threaten privacy, chill free speech, undermine due process, infringe upon Americans’ property rights, and even authorize the government to take actions that could result in the loss of life or damage to property.

The bill would authorize the Departments of Justice (DOJ) and Homeland Security (DHS) to “use reasonable force to disable, damage, or destroy” the drone, which is a euphemistic way of saying shoot it out of the sky. The bill would even permit the government to co-opt drones for its own surveillance purposes. At a June 6 committee hearing, Ranking Member Claire McCaskill (D-MO) acknowledged that deploying counter-drone technology poses unique difficulties in urban environments, but said she supports the bill in spite of these risks.

Potential problems include the shortage of accessible airspace due to building density and skyrises, signal interference, and potential inability to locate a drone, not to mention the risks to public safety in downing a drone. A falling drone could cause serious damage to property such as a car or building, or significant injury and even death to a person.

The FBI witness at that hearing, Deputy Assistant Director Scott Brunner, did not address those concerns, and instead highlighted the significant number of counterdrone products on the market that the Department of Defense (DOD) may use, and complained that the FBI is restricted from such use. What Brunner did not mention is that DOD’s authority is significantly narrower in scope than the authority being considered under this Senate bill. DOD’s definition of “covered facility or asset” is limited so that it can’t deploy counter-drone technology in urban settings, as is contemplated under this legislation. By contrast, S. 2836’s definition is exceptionally broad.

No Checks or Barriers to Seizure or Eavesdropping

Under this new authority, DOJ or DHS also could seize a drone, and that drone would then be subject to forfeiture. The bill would not require the government to obtain a warrant before acting or be subject to any judicial oversight or review after destroying or seizing a drone. Additionally, there would be no requirement that the government notify the drone operator or owner that it had destroyed or seized their drone. This may seem someone esoteric or trivial, since it’s about drones and most Americans don’t have them, but it poses a real threat to Americans’ property rights and due process.

Finally, the Preventing Emerging Threats Act would exempt DOJ and DHS from all federal criminal law requirements found in Title 18 of the U.S. Code. This would mean that whenever DOJ or DHS respond to a drone that they deem a “threat” to a “covered facility or asset,” they would not be subject to the Wiretap Act, the Stored Communications Act, or the Computer Fraud and Abuse Act. In other words, they could intercept communications from the drone or collect communications stored on it, or hack the drone to take control of it, all without a warrant.

Here again, DOJ and DHS would not be subject to judicial review of their actions afterwards, they could retain or share communications they intercept with few limitations, and drone operators or owners would not receive notice of the surveillance.

It is not an overstatement to say that this bill would give DOJ and DHS carte blanche to use potential safety threats posed by drones as a pretext to conduct warrantless and unaccountable surveillance. As I mentioned earlier, The bill would go beyond enabling the US government to track the drones, and would actually permit the government to co-opt drones for their own surveillance purposes.

Indeed, that is precisely what Senator Heidi Heitkamp (D-North Dakota), who is one of the bill’s co-sponsors, envisions. At the June 6 hearing, she lauded the Baltimore program where surveillance planes were deployed across the city to combat crime. She not only mistook the planes for drones, she also failed to note that the program ultimately failed and was disbanded following public outcry, and brushed aside the significant privacy concerns that the program raised.

She then touted the Senate bill, arguing that, “There’s no reason why a persistent [surveillance component] couldn’t actually catch a counterterrorism threat as well.” Brunner, the FBI witness, agreed. At a different point in the hearing, DHS Under Secretary for Intelligence and Analysis David J. Glawe testified, “Using [drones] for law enforcement purposes to conduct surveillance [on] criminal suspects, terrorists, foreign intelligence is going to be an absolute benefit in how we develop those policies and procedures.”

Vague Definitions of ‘Threat’

Concerns raised by these broad authorities — particularly those that exempt DOJ and DHS from privacy laws and warrant requirements — are compounded by the bill’s scope. Vague definitions that govern what constitutes a “threat” and a “covered facility or asset” could empower DOJ and DHS to act in virtually limitless circumstances.

First, there is no requirement that a “threat” be imminent, or that it relate to death or serious bodily injury, or destruction of critical infrastructure. The bill’s only guidance is that DOJ and DHS “shall take into account factors, including, but not limited to, the potential for bodily harm or loss of human life, the potential loss or compromise of sensitive national security information, or the potential severe economic damage resulting from use of an unauthorized unmanned aerial system in the vicinity of a covered facility or asset.” It would leave it to DOJ and DHS to establish their own definition of what constitutes a “threat,” and would even permit that they never craft a set definition, and instead determine what constitutes a “threat” on an ad-hoc basis.

Second, the definition for “covered facility or asset” is exceedingly broad. It essentially includes any location, so long as it’s in the U.S. and is directly related to one of a seemingly all-encompassing list of government missions. The list does include some appropriate missions, such as to protect assets and facilities like government buildings; FBI and U.S. Marshall Service “personnel protection operations;” and security and protection operations by the Secret Service and Customs and Border Protection.

However, this broad definition also includes locations being used for purposes that raise significant concerns — these would include the vast majority of the United States, such as DHS’s border zone or penal facilities. They would also include non-permanent “facilities or assets” like federal crimes scenes or emergency response areas. Finally, they would include any place where large numbers of people gather, whether that is a parade, protest, concert, or baseball game.

‘Sweeping Authorities’ for Public Gatherings

At the June 6 hearing, it was made clear that using these sweeping authorities at public gatherings and events was exactly what the bill’s proponents have in mind. McCaskill suggested that DHS could deploy the authorities granted under this bill at a St. Louis Cardinals baseball game. Glawe responded enthusiastically, noting that it would even give DHS the ability to act at relatively obscure events such as smaller running competitions that do not currently qualify for extra security as the major marathons do. Having such a broad and elastic definitions for what constitutes a “threat” and “covered facilities or assets” would leave everyone using a drone, from hobbyists, farmers, and hunters, to journalists, photographers, videographers, and activists at risk of being surveilled or having their property seized or destroyed without any judicial oversight or due process.

A group of 13 civil liberties groups raised many of these concerns about the Preventing Emerging Threats Act in a letter to the committee before it approved the bill. Nonetheless, the bill’s sponsors maintained that it is non-controversial and necessary to empower the federal government to counter malicious drones. At the markup, committee Chairman Ron Johnson (R-WI) repeatedly stated that his goal is to attach this bill to a must-pass vehicle like the National Defense Authorization Act that will be voted on soon, or the Federal Aviation Administration reauthorization, which is slated for a vote sometime this summer.

Enacting this bill in its current form would threaten civil liberties and property rights, endanger public safety, and invite abuse.

Congress can take several reasonable actions to start addressing concerns about drones. As a first step, members should ask DHS to provide a report outlining its strategy, needs, and current established capabilities for countering malicious drones. If that report establishes that new authorities may be warranted, Congress could then authorize a pilot program to ensure DHS can act effectively, safely, and in a manner that respects civil liberties. But giving DOJ and DHS this almost unchecked authority to destroy, seize, or surveill drones would be a grave error.

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