The field of aerospace ethics has dealt with the impact of technology and actions of aircraft that fly in the skies above people and nations, recently focusing on the rise of drones. The drone’s function to gather surveillance has been a longtime focus for military applications but only recently has this ability been demanded by domestic agents such as law enforcement and the Department of Homeland Security. Yet in the case of domestic surveillance, no set of ethical guidelines has been established dictating how drones can perform surveillance and how the data collected can be used. The objective of this paper is to set a framework in which the rights of a person can be protected while also looking out for the good of the public. To establish this framework, this paper will examine drone surveillance under the rights and utilitarian ethics approaches before considering a mixed approach.
Since the invention of flight, the field of aerospace ethics has dealt with the continuing developments in aircraft technology and function. The latest development that has had an impact on aerospace ethics is the rise of drones and their uses, specifically within the United States. The drone has become well known in recent years for its ability to perform wartime surveillance overseas, being able to gather intelligence for hours and even days on end. This capability is now sought by domestic agencies such as law enforcement and other agencies such as the Department of Homeland Security (DHS). Yet as the possibility of domestic drone surveillance becomes more realistic, critics of such a policy have raised questions over the privacy of individuals in regards to drones and the information collected. Codes of ethics are needed to address issues that will arise with the implementation of domestic drones. These codes of ethics would have to operate within a much larger statute: the Fourth Amendment to the Constitution of the United States. The Fourth Amendment protects people from being targets of unreasonable search and seizure without probable cause . The objective of this paper will be to set a framework in which drones can ethically operate domestically within the bounds of the Fourth Amendment. The discussion of the framework will be set up in three main sections: drone surveillance in regards to rights and utilitarian ethical approaches alongside an approach that takes the best of both philosophies.
Having long been used for military purposes, the first drones started to fly in U.S airspace in the early 1990s. The first drone was approved by the Federal Aviation Administration (FAA) for use in 1990 though the expansion of use was slow, growing to only 50 known users by 2007 . Since then, the FAA has gradually increased Certificate of Authorizations (COAs) to 327 active authorizations as of February 2013 . These drones can vary widely in size depending on how and where they are used. The Predator is the largest drone used domestically by DHS along the U.S. – Mexico border at a wingspan of 66 ft. . Most drones are smaller, ranging from a wingspan of 10 feet to a mere 6.5 inches . These smaller drones are often used by police departments and universities. Beyond the physical size, the technology varies with each drone in its application. The most common technology used is a high-powered camera to take still or moving pictures. Beyond the camera, drones can be outfitted with thermal imaging devices, license plate readers, laser radar, and facial recognition software . As these technologies improve the ability to perform surveillance, the demand for drone use has grown the most from law enforcement and Homeland Security. The FAA predicts that requests for drone use will continue to rise and it foresees 30,000 drones in use by 2030 .
Also foreseeing an increase in drones, Congress passed the FAA Modernization and Reform Act of 2012. The FAA Modernization and Reform Act of 2012 dictated that the FAA develop a plan to safely integrate unmanned aircraft into the national airspace system (NAS) by 2015. The integration would cover the certification, safety, and air traffic cooperation of civil drones within the NAS . The act also required the FAA to work with public agencies to integrate drones into the NAS and to determine what drones are acceptable to fly safely in domestic airspace . However, since the act became law, the FAA has delayed its progress due to privacy concerns .
The privacy concerns bring the Fourth Amendment into focus. The Fourth Amendment guards citizens’ privacy by protecting them from illegal search and seizure. The question is whether drones flying overhead violate such privacy by illegal search and is the data collected by a drone an illegal seizure? Some have attempted to answer this debate already in form of bills in the states of Florida and New Jersey that have already started their legislative journey. However, the bills leave the door open to the need for national security.
This paper will explore where the line between security and privacy stands by first examining the ethical issues of the safety of using drones overhead before using the rights and utilitarian tests to explore the ethical line of domestic surveillance. The ethics around the safety of drones needs to be examined first since it examines the drone first as a standard airborne vehicle operating in the NAS. Only once the safety of the drone is established can the ethical issues of what the drone is used for be discussed.
Drones and Safety
The discussion on drone safety will focus on two areas: cooperation with manned civil aircraft and drone spoofing.
Drones and Manned Aircraft
The lack of a physical pilot onboard raises questions regarding how drones would operate in airspace shared with manned pilots if the drone did not have a way to see the other aircraft. In testimony by the Government Accountability Office (GAO) in July of 2012, the GAO said that little suitable technology had been developed to meet the detect, sense, and avoid requirements of the NAS . Though work is being done to fix this issue, the question is raised about the cost for the integration of drones if drones cannot be used safely. The Association for Unmanned Vehicle Systems International (AUVSI) in its code of conduct states that an unmanned aircraft system (UAS) will not be operated in a manner that presents unnecessary risk to persons on the ground or in the air . So without technology to safely navigate the NAS, according to the AUSVI code of conduct, it would be unethical for the drones to be flown. A rights-based ethical test would agree, arguing that safety of the individual is a right that one is entitled to.
Without a physical pilot, a drone is reliant on satellite and other communication technology to be able to fly as its operator would see fit. But danger occurs when the drone loses contact with its navigator, or when the drone’s navigation is tampered with in a process called spoofing. In testimony by the GAO, drones lack dedicated frequencies and remain susceptible to interference. Once losing contact, the GAO notes that drones do not have standard procedures for air traffic controllers, leading to a decrease in safety . Thus the responsibility lies with the FAA to standardize frequencies and procedures. If it is not done, the FAA would be acting unethically since it would be putting the safety of individuals and the public in danger willingly. But beyond what the FAA can do, the danger of spoofing still remains. Spoofing involves the counterfeiting of the Civil Global Positioning System (GPS), which domestic drones use. In February 2012 a group from the University of Texas Radionavigation Laboratory successfully spoofed a Hornet mini UAV at White Sands Missile Range using standard civil aviation technology . With the threat of the spoofing, drone safety will always be a risk, posing a utilitarian ethics question: how much is surveillance worth? The answer to that question may limit how soon drones are made accessible once integrated. Yet the AUSVI in their code of conduct addresses the issue of spoofing by stating that risks assessments over communication and reliability standards should be thorough and commonplace in an effort to use drones safely and ethically . So even if safety can be assured so that drones can be successfully integrated into the NAS, do they belong up there?
The Fourth Amendment to the U.S. Constitution prevents illegal search and seizure of citizens and their houses. So to see whether or not domestic drone surveillance can ethically toe the line of the Fourth Amendment, the discussion will examine the issue using rights and utilitarian approaches. After using both approaches, the discussion will conclude by attempting to find a solution between the two approaches.
A Right to Privacy
Is privacy a human right? It would seem natural in a discussion on domestic drone surveillance to ask the question because if the answer is no, then the discussion of drones ends after safety. According the 12th article of the U.N. Declaration of Human Rights, no person shall be subjected to arbitrary interference of his privacy or home . The concept of privacy is derived most often from when it is violated, such as when personal information is exposed or blackmail is threatened. But in the cases of drones, information is collected and used based on its purpose. This is why, in reference to data collection, the American Institute of Aeronautics and Astronautics, in its important issues for 2013, recommends that a code of ethics be instituted for the collection, use, and storage of data collected by drones . The concerns of privacy rights activists lie in what is done with the data, drawing comparisons to George Orwell’s 1984 or Franz Kafka’s The Trial .
Since some data collection from surveillance violates a person’s right to privacy, where does the line exist? Recent Supreme Court cases regarding the Fourth Amendment, though not specifically on drones, have focused on what is constitutionally considered a “search.” In the case United States v. Jones, Justice Scalia noted a Fourth Amendment “search” occurs where the government obtains information by physically intruding on a constitutional area . Yet a drone flies overhead, not making a “physical” entrance into an area, so a more refined criterion must be made for overhead surveillance. In Kyllo v. United States, the court ruled that the use of a thermal imaging device by government agents on the home of Danny Kyllo was an unconstitutional search . Yet the court wrote in the case that the things one exposes to the public can allow police to do a warrantless search, provided that there is readily available incriminating evidence . Without probable cause, privacy is respected within the home, but if exposed to public, the Fourth Amendment gives room for the government to search. This precedent was upheld regarding manned surveillance in the case of California v Ciraolo, where police officers flew a fixed wing aircraft over a home at 1,000 ft. which resulted in the discovery of marijuana plants . Though no drone case has been heard, it is possible that the use of drones would have the same legal precedent.
Though legal precedent may carry over to the drone, it has not stopped privacy advocates from pursuing legislation to limit future drone use. A bill introduced in Florida requires law enforcement to get a warrant in order to use a drone with an exception made for national emergencies . Instead of just probable cause, the bill protects citizens’ privacy from unwarranted surveillance by requiring a warrant. To also protect the privacy of citizens, it is recommended by the International Association of Chiefs of Police to engage the community about possible drone use and to limit the amount of flight time of a drone . Community involvement must be valued highly if drone use is to respect the privacy of individuals and the community as a whole. In conclusion, a rights-based approach to domestic drone surveillance sets up serious limits on how drones are used while protecting a person’s right to privacy.
Drones and the Good of the Public
In the opposite camp, there are those who take a utilitarian approach, seeing that the capabilities and affordability of a drone far outweigh any safety or privacy concerns. Since the majority of early domestic drone users have been law enforcement and Homeland Security, whose job it is to keep people safe and the border safe, the choice will be taken to reduce cost if alternatives can provide the same function as more expensive options. In testimony to Congress, William McDaniel, the Chief Deputy of Montgomery County Sheriff Office, explained that the police department looked into purchasing an air asset to improve police response capabilities; the cost of a drone was a little over $200,000 . McDaniel notes this cost was half the cost of small manned plane, a tenth the cost of a helicopter, and required significantly less man-power to use . Likewise for Border Patrol, seven Predator drones patrolled the entire U.S. – Mexico border in 2010 with hopes to raise the number to 11 on the border by 2016 . Yet the question becomes this: does the potential for improved capabilities and lower cost justify domestic drone use?
A utilitarian approach can only work if it can show that the concerns are not as great as they are made to be and the benefits are significantly valuable to society. In testimony to Congress by Michael Toscano, the president of AUVSI, Toscano remarks that unmanned aircraft are used to perform dangerous and difficult tasks safely and efficiently while operating in the legal framework in the Fourth Amendment . In addition to what drones can do, Toscano remarks that integration of drones into the NAS will help create 70,000 new jobs and generate $13.6 billion of economic impact within the first three years . While the usefulness of the drone may go largely unnoticed by the public, economic impact for individuals, families, and communities would create maximum utility of domestic drone surveillance. The maximum utility, though, would hinge upon a lack of abuse in drone use. The possibility of abuse would allow the questioning of what utility the use of drones has. While the code of conduct of the AUVSI states that UAS community will uphold to all laws and operate as responsible members, room is left for abuse, especially as the FAA predicts up to 30,000 drones being used by 2030  . Thus for maximum utility to be protected, the FAA will need to regulate the drone within the NAS to provide the mechanism for maximum utility in relation to drones. The GAO notes that without the regulation, the drone market will hinder drone integration into the NAS .
Privacy, Utility, and the Drone
With a solution to the approaches of privacy rights and utility, the integration of drones into the NAS would come soon after. A possible solution was given in testimony by Benjamin Miller of the Mesa County Sheriff’s Office to the Judiciary Committee in March of 2013. Miller’s solution would require a warrant for use of unmanned aircraft when it was deemed to intrude beyond the expectation of privacy, but in cases where privacy is not breached, there would be no restriction to the use of the drone . The warrant would protect the right to privacy while placing a limit on regulation and would still allow the drone to be used in maximum utility. A similar approach is being taken in proposed legislation, such as a bill introduced by Rand Paul which requires a warrant be obtained before using a drone to collect data, with exceptions for border patrol, threats to national security, and pressing matters of law enforcement . Seen in the solutions, the right to privacy gives a framework in which utility can be maximized within appropriate use.
It may be that drones are here to stay domestically, helping perform surveillance for law enforcement and other agencies, but one first must consider the ethical implications of drone safety, privacy, and utility. These ethical considerations will ultimately help bring about the integration of the drone into the NAS. The Fourth Amendment to the Constitution of the United States indeed does loom large in ethical implications in domestic drone surveillance even though the drone may still have its day before the Supreme Court.
By Keith Holmlund
About the Author
Keith Holmlund graduated from USC with a B.S. in Aerospace Engineering. Keith helped lead USC to a 3rd place finish in the AIAA graduate team design competition for 2012-2013 with a HALE UAS. Keith currently resides in the San Francisco Bay Area seeking entry level aerospace opportunities.
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