EFF Lawsuit Uncovers Abuse Of Surveillance Drones; DHS Files Motion To Suppress Further Transparency

Failures

from the it's-so-GREAT-that-we-have-to-sue-our-government-so-often-#americandream dept

About a week ago, the EFF obtained documents (via a FOIA lawsuit) detailing usage of CBP’s (Customs and Border Protection) fleet of Predator drones. Nothing much has changed since the last time this subject was visited (back in July): the CBP is still acting like a drone lending library, loaning out its drones to everyone, from the FBI and DEA to DPS offices, the Bureau of Indian Affairs and various military entities. What has changed is just how many agencies have been recipients of the CBP’s largesse.

First off, there’s a “problem” with the DOJ’s internal accounting. According to the recent OIG report, DOJ agencies have only used the CBP’s drones twice. The list obtained by the EFF shows that DOJ agencies have utilized these drones more than 100 times. Even an internal inspection failed to uncover the breadth of the CBP’s drone deployment.

Beyond this misstatement (or whatever the DOJ will claim it is), the CBP’s indiscriminate drone loans have become somewhat of a community outreach program.

The list also includes several county sheriff’s departments. However, CBP has refused to release the names of these agencies, arguing in a recent court filing that to do so would disclose secret law enforcement techniques and would somehow “reveal that CBP is aware of the illegal activities taking place in a particular location.” It’s hard to fathom how releasing the name of a county sheriff department—without any other information about the drone flight for that department—would somehow let the criminals in the area know they’re being watched and help them evade detection.

Worst case scenario, criminals would now be aware there’s a chance their local sheriff’s department might have sporadic access to surveillance drones and govern themselves accordingly. Seems like a long shot to claim that current investigations might be compromised. If the criminals are staying current with EFF and ACLU document liberations, then it’s safe to assume they’ve already adjusted their activities to account for potential drone usage.

But the argument the CBP is pushing isn’t really about protecting ongoing investigations. It’s about maintaining the opacity the CBP was used to. It doesn’t want to talk about its indiscriminate lending and deployment of surveillance drones because this might uncover illegal uses and constitutional violations. This summary judgment motion is the DHS (which oversees the CBP) indicating it’s no longer interested in being forced to be transparent — a tactic that echoes the UK’s intelligence agency reps telling The Guardian while observing the forced hard drive destruction, “You’ve had your debate. There’s no need to write more.”

The DOJ certainly doesn’t want any more info to be liberated by agencies looking after the rights of Americans. Why? Because it has deployed drones for seven years without putting together even the most minimal of privacy policies. It’s finally being forced to do so thanks to the highly-critical OIG report, but it comes roughly seven years too late.

The EFF has expressed the hope that the DOJ will craft policies “with some meat on them,” but early responses from various agencies indicate that they’re fine with minimal guidance and oversight and point to existing rules governing manned surveillance flights as being more than adequate. According to these officials, there’s no “practical difference” between the two. But that’s completely wrong.

“The main difference is that UAS will drive down the cost of aerial surveillance quite radically, as well as permit smaller and more invasive and longer flying, or even persistent, aerial platforms for surveillance,” Peter Asaro, a drone expert and professor of media studies at the New School, told Ars. “The implications of these technological shifts are that such surveillance can be done much more readily and may even become ubiquitous. This has an obvious and definite impact on privacy, whether that surveillance is being conducted by police forces and the Department of Justice, or whether it is being conducted by private citizens and companies.”

Even the OIG calls out the DOJ for treating the two as interchangeable:

The OIG recognized what EFF has been saying all along—that the advanced technological capabilities of drones, their low operational costs as compared to manned aircraft, and their ability to conduct “pervasive tracking of an individual’s movements” whether on “public or private property “ raise “unique concerns about privacy and the collection of evidence.”

The government is currently fighting to keep its redactions intact, all the while showing it clearly can’t be trusted to responsibly deploy the technology under its command.

Filed Under: cbp, customs and border protection, dhs, drones, transparency
Companies: eff