Criminal Justice & the Rule of Law Cybersecurity & Tech Surveillance & Privacy

Guidelines for Governance of Domestic Drones in the US Airspace

Paul Rosenzweig
Friday, September 21, 2012, 1:15 PM
At the risk of tooting my own horn a bit, I am pleased to announce the publication of "Drones in U.S.

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At the risk of tooting my own horn a bit, I am pleased to announce the publication of "Drones in U.S. Airspace: Principles for Governance" a paper I co-authored with three other colleagues at The Heritage Foundation (where I serve as a Visiting Fellow), Steven Bucci, Cully Stimson and James Carafano.  Our goal in writing this paper was to ground any discussion of the domestic use of drones in first principles of governance.  Our basic conclusion is that there are some governmental uses of drones domestically that are manifestly appropriate (for example, search and rescue in the aftermath of a natural disaster) and others that seem obviously to cross a red line (e.g. the deployment of weaponized drones for military operations in the US in violation of the Posse Comitatus law). We also conclude that most of the difficult and interesting questions in the middle ground involve delicate questions of policy that ought to be answered in the first instance by the Executive Branch and that, inter alia, the FAA is probably not the agency to make most of these judgements (save for those within its area of expertise involving safety issues).  [We wrote the paper before yesterday's Smackdown debacle but the sheer hilarity of that episode only serves to confirm our judgement, I think!] Here is a sample of the paper from our conclusion:
Congress should:
  • Permit the FAA to continue with its rulemaking regarding the domestic use of drones but make clear that the rulemaking is limited to issues of safety and airspace use that are squarely within the FAA’s expertise;
  • Condition further expansion of the domestic use of drones in accordance with the FAA’s rulemaking on the development of clear guidelines on permissible uses for drones and the development of an oversight and audit mechanism; and
  • Taskthe Administration with the development of guidelines that, at a minimum:
    1. Recognize and authorize legitimate uses of drones that pose no appreciable risk to privacy or civil liberties;
    2. Prevent the militarization of the domestic drone air fleet;
    3. Prohibit the use of drones to monitor constitutionally protected First Amendment expression; and
    4. Ensure that drones do not become another comprehensive platform for the collection of large data sets of unstructured surveillance data.
In the absence of congressional action, the executive branch should reluctantly proceed independently with the development of its own privacy and civil liberties policies for the use of drones.

Paul Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company and a Senior Advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University, a Senior Fellow in the Tech, Law & Security program at American University, and a Board Member of the Journal of National Security Law and Policy.

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