Jun 052012
 
 June 5, 2012  Surveillance, U.S.

I mentioned this last month when DangerRoom covered it, but now CBS has picked up on the issue, too. Charles Feldman reports:

As the Federal Aviation Administration helps usher in an age of drones for U.S. law enforcement agencies, the use of unmanned aerial vehicles (UAV’s) domestically by the U.S. military — and the sharing of collected data with police agencies — is raising its own concerns about possible violations of privacy and Constitutional law, according to drone critics.

A non-classified U.S. Air Force intelligence report obtained by KNX 1070 NEWSRADIO dated April 23, 2012, is helping fuel concern that video and other data inadvertently captured by Air Force drones already flying through some U.S. airspace, might end up in the hands of federal or local law enforcement, doing an end-run around normal procedures requiring police to obtain court issued warrants.

[…]

What has critics alarmed is that data collected by drones accidentally, under the guidelines, can be kept by the military up to three months before being purged and can also be turned over to “another Department of Defense or government agency to whose function it pertains.”

The Air Force guidelines permit using drones domestically to assist law enforcement in “investigating or preventing clandestine intelligence activities by foreign powers, international narcotics activities , or international terrorist activities.” More vague is language that also allows military cooperation with local law enforcement for the purposes of “preventing, detecting, or investigating other violations of law.”

Read more on CBS Los Angeles.

The relevant section of Air Force Instruction 14-104 is Section 11.12, Assistance to Law Enforcement. Subsection 11.12.2 defines Types of permissible assistance:

Air Force intelligence components may only provide the types of assistance to law enforcement authorities delineated below. Assistance may not be provided for, or participation in, activities that would not be permitted under this instruction.

11.12.2.1. Violations of US federal law. Incidentally acquired information reasonably believed to indicate a violation of federal law shall be provided to appropriate federal law enforcement officials through AFOSI channels.

11.12.2.2. Other violations of law. Information incidentally acquired during the course of Air Force counterintelligence activities reasonably believed to indicate a violation of state, local, or foreign law will be provided to appropriate officials IAW procedures established by the Commander, AFOSI. Information incidentally acquired during the course of Air Force foreign intelligence activities reasonably believed to indicate a violation of state, local, or foreign law will, unless otherwise decided by AF/A2 for national security reasons, be provided to AFOSI IAW procedures established by the AF/A2, or his/her designee, for investigation or referral to the appropriate law enforcement agency. Information covered by this paragraph includes US person information (See paragraph 12.).

11.12.2.3. Provision of specialized equipment and facilities. Specialized intelligence equipment and facilities may be provided to federal law enforcement authorities, and, when lives are endangered, to state and local law enforcement authorities, only with the approval of the SecAF delegated authority and the concurrence of SAF/GC.

11.12.2.4. Assistance of Air Force intelligence personnel. Air Force intelligence personnel may be assigned to assist federal law enforcement authorities with the approval of the SecAF delegated authorityand the concurrence of SAF/GC. Under certain exigent circumstances (e.g., when lives are in danger), Air Force intelligence personnel may be assigned to assist state and local law enforcement authorities, provided such assistance has been approved by the Deputy Chief of Staff of the Air Force, Manpower, Personnel and Services (AF/A1) and SAF/GC.

There is also an earlier section of the document that suggests how civilian agencies may obtain data from domestic surveillance:

9.6.2. Air Force Unmanned Aircraft System (UAS) operations, exercise and training missions will not conduct nonconsensual surveillance on specifically identified US persons, unless expressly approved by the Secretary of Defense, consistent with US law and regulations. Civil law enforcement agencies, such as the US Customs and Border Patrol (CBP), Federal Bureau of Investigations (FBI), US Immigration and Customs Enforcement (ICE), and the US Coast Guard, will control any such data collected.

So if the Secretary of Defense approves nonconsensual surveillance on a U.S. citizen (“consistent with U.S. law and regulations”), then domestic agencies will receive and control the data. So now SecDef is the arbiter of the Fourth Amendment and privacy rights?

This doesn’t sound like adequate protections or recourse to me. Your aerial mileage may vary, of course.

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