Transparency is first step toward effective privacy protections
MuckRock and the Electronic Frontier Foundation have mapped deployments of drones in domestic airspace on an unprecedented level. Through public records requests to more than 350 government agencies nationwide, the 2012 Drone Census has uncovered growing interest in UAV technology for use in law enforcement, aerial surveillance and public safety.
Transparency regarding drones is the first step to addressing the numerous privacy concerns they raise, but some agencies resist the light.
It is difficult to overstate the role public records and sunshine laws have played in the national debate and activism surrounding drones. Beginning with EFF's FOIA lawsuit in 2012 to force the FAA to disclose which agencies had applied for drove waivers, records requests have been crucial to uncovering which agencies were using or seeking this controversial technology.
Since last June, the Drone Census has submitted 379 documents requests to 375 agencies across the country, from small towns in Kansas and Idaho to the major military branches and federal intelligence agencies. More than half of these request leads were suggested by MuckRock users curious about the use of drones by local government entities.
As expected given the scattershot, user-led approach, more than half of the requests came up empty, putting more than 200 agencies on records as having taken no steps toward deploying a UAV. (Although a number of agencies that claimed they had no responsive documents, like the FBI and DARPA, were on FAA lists of drone certificate applicants, so they’re clearly fibbing.) MuckRock is still awaiting responses from another fifth of the agencies, including the Department of Homeland Security, Customs and Border Protection, the Army and the Navy, all also on the FAA lists. A smattering of national guard units, municipal and state law enforcement agencies and police departments still have yet to answer the 2012 Drone Census requests as well.
Documents released by 45 agencies over the past several months have unearthed details regarding UAV deployment across the country, including in a number of communities where this was not previously disclosed. In Seattle, where police failed to disclose their drone purchase to even the city council for two years, Drone Census documents brought to light the police department’s desire to obtain additional units. MuckRock documents revealed that the sheriff of Alameda County, Calif., was in the beginning stages of acquiring a drone despite vocal opposition from local civic groups, and that law enforcement in Austin and San Francisco had taken similar steps but not acquired a UAV.
Records showed that the Georgia Tech police weighed using a UAV to monitor freshmen move-in and football games, and that the Maine State Police purchased a “toy” drone for tactical missions without applying for approval from the Federal Aviation Administration. The Drone Census also uncovered details regarding the deployment of UAVs in Idaho, Colorado and Virginia
Given the privacy concerns raised across the political spectrum regarding drones, transparency on this issue is critical. But a number of agencies rejected the Drone Census records request outright. The reasoning behind the rejections varied. The San Diego County Sheriff's Office invoked a statutory exemption for “deliberative process” when asked for documents detailing its drone inquiries, which were already on the record. The Virginia State Police and Metropolitan Nashville Police Department in turn replied that provisions in their respective records laws did not require disclosure to “non-citizens” of Virginia and Tennessee. (MuckRock co-signed an amicus brief urging the Supreme Court to strike down such exclusionary public records statutes in a ruling expected this summer.)
A few police departments have resisted requests by invoking privilege for law enforcement tactical plans and officer safety measures. The Russell County, Va. sheriff rejected our request on the grounds that releasing information on its drone purchase would "pose a safety risk to the tactical plans of this law enforcement agency." The Montgomery Count, Texas sheriff attempted to withhold its documents under similar logic, but the Texas Attorney General rightly ruled that information concerning technology employed by police agencies belongs in the public domain.
Beyond outright rejecting the request, a number of agencies demanded incredible fees for the release of drone documents. The Georgia Tech Research Institute estimated that it would cost $115,000 to locate responsive documents, while fellow universities like the University of North Dakota, Virginia Tech, Virginia Commonwealth University, University of Central Florida, Kansas State University and the University of Colorado-Boulder required fees of $900 to $7500 The Marine Corps charged $714 for its documents, and the sheriff in Lane County, Colo. estimated a cost of $375 for its documents. In total, 18 public agencies demanded $20,322.65 for documents detailing drone deployment and acquisition.
While charging a fee for review, duplication and postage of public records is acceptable and to be expected in the age of budget cuts, agencies and their fee schedules should be held to a reasonable standard, particularly given the public interest served by transparency.
Perhaps the most disturbing example of non-transparency regarding drones comes from the top: the FAA. The federal agency charged with overseeing the integration of UAVs into domestic airspace has resisted clarity from the start. The FAA only began releasing documents concerning drone waivers after two lawsuits from the EFF, and then only piecemeal. The agency now points to its litigation with EFF as an obstacle to releasing further drone records to other parties, suggesting that the lawsuit “now prohibits the agency from answering any other requests that seek the same records.” The FAA rejected MuckRock's request for drone flight logs submitted by UAV waiver holders on these same grounds, despite the fact that EFF's lawsuit does not seek these documents. MuckRock has asked the Office of Government Information Services (OGIS) to arbitrate with the FAA on this matter.
As MuckRock and EFF prepare to launch the 2013 Drone Census in the coming months, we do so with the conviction that transparency is a critical precursor to privacy measures. Citizens must know where drones are, what they are capable of, and how agencies intend to use them. As legislation to restrict or ban drones is now being considered on Capitol Hill and in more than 30 states, drones could use all the sunshine we can muster.
File a Freedom of Information request through MuckRock today for just $20 for 5 requests and help make our democracy more transparent, open and accountable. Contact MuckRock at email@example.com and follow us on Twitter at @MuckRockNews.