The Highs and Lows of Being Watched

The Federal Aviation Administration is totally cool with domestic spy drones, now. But what about those robots "accidentally" spying on you?

Drop whatever it is you’re pretending to work on right now. Stagger outside and look at the sky – once you’re back, I’ll tell you what you likely did and did not see. Go on. I’ll wait.

Welcome back. OK. Taking into general account all times and locations, I can say with relative certainty that you saw at least one of the following: the sun, the moon, clouds, stars, tree limbs, signage of some sort, a structure of some sort, passenger planes, jet trails. Some birds, maybe. And I’ll hazard to guess that you saw no unmanned reconnaissance aircraft figure-eighting persistently as it gazed downward, potentially tracking your every move. Unless you’re out in central New Mexico, you probably weren’t caught staring back at a surveillance drone that if commanded could collect gobs of video of you being awkward.

But that doesn’t mean a decent number of surveillance drones haven’t already taken to skies over the United States. And if the Federal Aviation Administration is good to its word that by Monday it will release some sort of template for streamlining the process by which various government agencies are cleared to operate unmanned aircraft in domestic airspace, that also shouldn’t give off the impression that there maybe aren’t droves more drones on the way.

That’s a big If. This is the U.S. government we’re talking about. This is where almost all decent, well-meaning proposals go to be either python’d in red tape, or torpedoed entirely. But it’s also where almost all questionable, illogical and outright shitty proposals pass only after grinding bureaucratic slogs. Any delay on the first major milestone of the FAA’s Modernization and Reform Act of 2012 (.pdf), which says that within 90 days of passage (President Obama signed the $63 billion funding bill Feb. 14) the agency has to permit “local government and public safety agencies” to fly drones that exceed neither 4.4 pounds nor 400-foot altitudes, will come to no surprise. So maybe don’t hold your breath.

But hey, so-called civilian drones are becoming big, big business. After all, it was the Association for Unmanned Vehicle Systems International, a drone industry lobbying group that boasts over 500 corporate members in 55 countries, that took credit for language responsible for the FAA’s expedited approval of agencies that are eager to build up drone fleets beginning this year. So this is all unfolding at near-breakneck pace. The FAA act runs through 2016; Congress, meanwhile, is pressing the agency to have remotely piloted unmanned aircraft fully integrated into U.S. airspace by fall 2015.

It’s high times for droned-out American robotics firms. The Wall Street Journal recently reported that nearly 50 companies are tinkering on some 150 different civilian unmanned systems, from micro drones to airliner-sized giants, all specifically designed to carry surveillance gear, not explosives. Some estimates have the American drone market in 2016 pulling down $6 billion in sales. So, too, will it come as no great shock to hear the FAA got it together for today’s deadline.

What’s certain, though, is that widespread aerial surveillance will be greenlit for local law and safety agencies whenever the FAA hits this first modernization milestone. There’s no telling how effective the streamlining efforts will prove over time, of course. But Amie Stepanovich, associate litigation counsel at the Electronic Privacy Information Center, a public-interest research center in Washington, D.C, tells me that drone authorization for cops, first responders and the like will only get “simpler, easier, and faster.”

How fast? Stepanovich, who deals primarily with issues of government surveillance and digital and national security, says that under existing laws some 30,000 drones will take to American skies over the next decade.

And it’s not only this prospect of tens of thousands of airborne surveillance drones that, viewed purely as a matter of public safety, has Stepanovich concerned about the near future. The FAA seems to have put no restrictions on what can be done with drones, she explains, so long as it’s done in a “safe manner.” The agency has set no surveillance restrictions for unmanned aerials, she adds, and no parameters on their data collection. So what’s deeply troubling to her and other privacy advocates is how a blind, hasty push to swell the drone ranks could compromise the rights of average American citizens who simply do not want to be watched. Should the FAA not act on these fundamental concerns as it begins establishing drone regulations, Stepanovich argues, the door to unchecked, warrantless, “accidental” spying of domestic civilians through unmanned aircraft could be kicked open.

That’s not to say this sort of thing isn’t already going on. The Air Force calls it “non-consensual surveillance,” and “like the rest of the military and CIA” the flying service supposedly forbids the practice, according to Wired’s Spencer Ackerman, who cites an ace find by Steven Aftergood, a secrecy scholar with the Federation of American Scientists. That said, an already heavy moment in Attack of the Drones, a new short documentary on America’s drone programs, just got a whole lot thicker. The scene unfolds at a reconnaissance drone training session at Holloman Air Force Base in New Mexico.

I’ve watched this bit a good six or seven times, now. The chilling awkwardness really holds up. This scene cuts to the core dilemma of the drone gaze: Bringing hyper-sophisticated technologies designed for overseas battlefields back home for domestic deployment only seems to splinter the questions the systems are billed to answer.

Take legality. That right there, the scene at Holloman – is that legal? Existing law says that you have every right to collect information, which includes video, of the public sphere provided you’re gazing down “from where an airplane could see,” Stepanovich says. No warrants are required to do that. To the letter of the law, at least, the drone pilots at Holloman didn’t require permits to track that van simply because anybody else flying overhead would see the same thing if looking down. “That’s public knowledge,” Stepanovich admits. “That would be legal.”

But then there’s consent, which Stepanovich says the Air Force is encouraged to get “to inform people when they’re being surveilled.” Holloman did not immediately respond to a request for comment, but Stepanovich goes on to tell me that consent is by no means a deal breaker. She breaks down the Air Force’s surveillance rationale in four tiers: 1. Request consent. 2. If no luck, try operating through others “who can get consent.” 3. If these others can’t get consent, either, then no worries – you’re “allowed to do surveillance of any source” that doesn’t require a warrant. 4. If a warrant is required, go get one. Seems straight forward (legal) enough, even if choice words (legal, on paper) from the Air Force directive unearthed by Aftergood piss all over the spirit of aerial surveillance law: Imagery collected by domestic drones “may incidentally include U.S. persons or private property without consent.”

If all of that is not at least somewhat opaque to you, other facets of the domestic drone game – how long has the Air Force has been rolling with this training tactic, and just how widespread it is – get even murkier. Right now, even with the FAA set to start kicking it all into high gear, there’s still a lot we simply do not know, and maybe never will know, about domestic drone operations across the U.S. military.

To it’s credit, Attack of the Drones takes a legitimate stab at uncovering shreds about this still-secretive world. The film covers a lot of ground – “secret” Middle East drone wars and CIA kill lists, drone pilots’ mental and emotional “burnout,” tomorrow’s scary-awesome drone tech, the video-gamification of warfare – and stumbles on the occasional bit of forced alarmism. (I mean, just look at the title.) But it never really seems to bite off more than it can chew, and any overwrought doomism is almost entirely outweighed by solid reporting. Attack of the Drones can be viewed in its entirety here, and for the moment, at least, can stand as a telling reminder that just because the future of domestic spy drones could start today doesn’t mean the guidelines that’ll shape that future are immovable.

So sit a minute, and imagine a day when all manner of pinpoint-accurate, hi-resolution and potentially long-range data-collecting drones size you up, whether you like it (or are aware of it) or not, each time when you stagger outside and look up. Go on. I’ll wait.