research paper

Who Holds the Controls?

The Drone Dilemma: Who Holds the Controls?

I. Purpose

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apid advancements in small-packaged affordable navigation systems has expanded the capabilities and applications of unmanned aerial systems (UAS, or drones) and increased the necessity of new guidelines and regulations. The general lack of policy for the domestic use of drones has increased the sense of urgency for public service officials and citizens. The potential misuse of drone systems and the future implications of policy decisions are extremely important factors. Legislators must consider variables including; protection of privacy rights, hazard mitigation, authority delegation, and limits of regulation, just to name a few. Then there’s the moral and ethical aspects to consider. Is America on the right path with its practice of drone warfare? Will weaponized drones be allowed in America? If allowed will domestic weaponized drones benefit society or impinge on traditional values? The purpose of this report is to provide a brief overview of drone technology, it’s application, public opinion, and to discuss the gains, losses, and the state of regulation, the “drone dilemma.”

II. Hypothesis

In post 9-11 America, the citizenry has gradually become insensitive to, or at least accustomed to, the military use of armed drones as weapons in fighting the Global War on Terror (GWOT) over foreign nations. This “normalization” of weaponized drones for the perceived “greater good” of the nation, may ultimately lead to the widespread and accepted use of drones in America by law enforcement agencies in the interest of ensuring public safety.

Consequentially, continued terror incidents and mass shootings will lead to the eventual implementation of weaponized drones for hostage situations. This critical shift in policy will lead to expanded use and a different reality for citizens. Though the gains may be many, the losses could be intangible; American values, liberty, and freedom. Furthermore, technology is outpacing our ability to fully understand its implications as we struggling to keep pace. In addition, drone strikes have not been proven wholly effective in reducing terrorism, therefore this approach must be reconsidered. Finally, the societal costs incurred from the widespread use of weaponized drones will outweigh the benefits gained from them.

III. Defining Drones

To have a better understanding of drone technology one must consider the extreme variety of sizes, capabilities, and applications. For classification purposes this report divides these systems into two categories; large, high altitude, long range, military type aircraft, referred to as UAS, and the smaller, low altitude, short range aircraft as drones. The basic distinction between a drone and other aircraft is that they do not require a human operator on board. Although, some drones have the capability to fly autonomously, they are most commonly remotely piloted. (Davis et al, 1)

On June 21, 2016, the Federal Aviation Administration (FAA) established the Small Unmanned Aircraft Rule (SUAA), to promote public safety and clearly define drone limitations, that includes that drones must have, weight of less than 55 lbs., maximum groundspeed of 100 mph, maximum altitude of 400 feet above ground level, and the requirement for visual line-of-sight (VLOS) between pilot and aircraft. The SUAA also requires a pilot to possess a Remote Pilot in Command Certification to legally pilot small drones. (FAA, “Summary…) Larger drones that exceed the limits defined in the SUAA must follow other requirements including pilot licensing, aircraft registration, and flight plan approval. (McGlynn, “Domestic…” 885) Other important limitations include compliance with restricted airspace, rights-of-way, and environmental conditions. For its part, the FAA has been reactive to the need for rules to ensure public safety. However, the new FAA guidelines failed to establish any specific rules that address privacy issues and it does not regulate data gathering from the use of drones, but “the FAA is acting to address privacy considerations in this area. (FAA, “Press…)

One reason the use of drones has expanded rapidly is new guidance systems have “…become smaller, cheaper and more powerful in recent years.” (McGlynn, n.p.) A good example is a drone which is called the Falcon, a hand launched drone designed for search and rescue missions. This drone has an eight-foot wingspan, weighs a mere 9.5 pounds, and can be purchased for under $30,000. (McGlynn, n.p.) The Falcon and other similar drones have already proven to be an invaluable asset for public agencies as well as civilian companies. These drones provide a good alternative to the use of airplanes and helicopters for surveillance purposes and offer a much lower cost alternative reducing operational expenses and requiring less manpower. The sizes and capabilities of drones available for the public sector are wide ranging and seemingly limitless. While some drones are miniscule in scale, the size of a small bird or even an insect, others are large jet powered aircraft with the ability to fly at 60,000 feet. (McGlynn, n.p.) The broad range of size and capabilities combined with expanding growth in the civilian market has highlighted the need for legislation and strategy.

Drone technology offers a widespread of applications for private citizens, businesses, and public agencies and there is big money to be made from the rapid growth drone use. In fact, experts predict that from 2015-2025, around $82 billion of revenue from the drone industry will impact the American economy! (McGlynn, “Drones…” 885) It is expected that drones will be used for a variety of civilian and commercial applications including; search and rescue, land management, agriculture, science, and natural resource exploration. (McGlynn, n.p.)

IV. Foreign Policy

The concept of using drones to assist the military is not new, “In the 1930s, Britain's Royal Navy invented radio-control biplanes for battle ships to use as target practice. They were called Queen Bees, hence the term ‘drone.’" (Teschner, 75) What has changed however, is the capability of UAS to deliver highly precise munitions and conduct surveillance from around 15,000 ft. (Teschner, 75) UAS have been affective at administering lethal weapons while limiting the number of incidental casualties or collateral damage. (Allenby and Hagerott, n.p.) This modern approach to battle, “…now creates the political expectation that wars can be fought with few or even no casualties.” (Allenby and Hagerott, n.p.) However, this political expectation fails to account for the devastation to targeted “enemies” and innocent non-targeted victims. Although, pilots are physically removed from the battle and safe from the peril of traditional warfare, they are not immune to negative psychological effects, such as PTSD. (Allenby and Hagerott, n.p.)

The mitigation of U.S. casualties has lessened public attention and helped to proliferate use of UAS in hunter-kill missions. The lack of consequence to U.S. service members has directly influenced foreign policy directives. President Obama expanded the UAS program and “…approved more targeted killings than any modern president” in fact from 2009-2012, “the Obama administration has carried out at least 239 covert drone strikes, more than five times the 44 approved under George W. Bush.” (Rohde, 65) Military training has been adjusted for the expansion as well, “The U.S. Air Force trained 350 drone pilots in 2011, compared with only 250 conventional fighter and bomber pilots trained that year.” (Cronin, 53)

Although UAS platforms have reduced American military casualties, the true effectiveness of the UAS weapons program is less clear. One problem that hinders effectiveness is collateral damage that occurs from U.S. airstrikes that often creates physical, mental, and economic damage. Another problem is that terror groups such as al Qaeda target the Muslim population around 85% of the time, regardless of how careful the U.S. is to avoid civilian casualties, those populations do not believe that U.S. airstrikes are effective, nor do they relate them to preventing al Qaeda violence. (Cronin, 47) In Pakistan, the use of UAS has not seemed to improve opinion towards America, “Among average Pakistani’s, the strikes have played out disastrously. Seventy-three percent had an unfavorable view of the United States in a 2011 Pew survey, up from 63 percent in 2008.” (Rhode, 67) Despite critical opposition, proponents of UAS hunter-kill missions claim their estimated numbers of killed combatants do in fact, quantify the effectiveness of the program. According to data compiled by the New America Foundation in 2013, since Obama has been in the White House, U.S. drones have killed an estimated 3,300 al Qaeda, Taliban, and other jihadist operatives in Pakistan and Yemen.” (Byman, 33) However, critics continue to question the accuracy of the reported numbers, in part because hostile enemy combatants are not always clearly defined, not part of an official military, and not wearing uniforms. Regardless of the how the numbers stack up, Americans seem to be generally acceptable of the campaign, according to an Associated Press survey in 2015, sixty-one percent of Americans favored the use of UAS in foreign countries to kill terrorists, while twenty-four percent remained neutral and just thirteen percent were opposed to the policy. (AP, “Do you favor…”)

Aside from the risk of collateral damage, ethical dilemmas, and potential damage to the image of America, the use of UAS for hunter-kill missions severely damages the ability to gather intelligence from the enemy, a key element in warfare. (Cronin, 52) “Another main problem with Washington's overreliance on drones is that it destroys valuable evidence that could make U.S. counter terrorism smarter and more effective.” (Cronin, 52) The phrase, ‘dead men don’t talk’ comes to mind as it would seem impossible to estimate the true value of intelligence that has been destroyed by munitions or lost from the act of killing versus capturing the enemy.

V. Law Enforcement

As we look to the future it seems the only limits to potential applications of drone technologies are limits that we are willing to put them. History has shown time and again that life often imitates art. What was perceived as pure science fiction just a few years ago is now becoming a reality and it’s not too far-fetched to imagine drones issuing traffic citations, following suspects, or keeping tabs on parolees. The concept of ‘Skynet,’ an autonomous robotic controlled society like the one in James Cameron’s 1984 film, The Terminator, may not be so far-fetched after all, “More than 40 countries including the United States, Great Britain, Russia and China are developing a new generation of robotic weapons that can be programmed to seek out and destroy enemy targets without direct human control.” (McGlynn, n.p.) Therefore, it would seem critically for important for policy writers to understand the limitations of both systems, not only human controlled platforms, but also autonomous systems. This represents a crucial challenge for officials to balance the benefits of new technologies with the protection of civil liberties and freedom.

“As of right now, we have only a piecemeal understanding of intrusive technologies, based on investigative reporting or litigation,” says Rashida Richardson, legislative counsel for the New York Civil Liberties Union.” (Mantel, n.p.) A major concern raised by civil liberty advocates is that drone surveillance is intrusive to Fourth Amendment protections and they feel drone surveillance should absolutely require a warrant. (Mantel, n.p.) For the most part the Supreme Court has been clear on the interpretation of what constitutes a search, according to New York University, Law Professor Barry Friedman,

If something is a “search” within the meaning of the amendment, law enforcement can do it, so long as they have probable cause and a warrant, but if it is not a ‘search’ within the meaning of the Fourth Amendment, there are no limits on what the government can do. To any of us. (Mantel, n.p.)

To further complicate the matter the Supreme Court also has cited that a warrant is only required of new technologies when they are not for “general use,” which means available for use by the general-public. To which Friedman further explains, “Given the current pace of technology, soon everything law enforcement possesses might be ‘in general use.’” (Mantel, n.p.)

The use of drones by law enforcement has been steadily increasing due in part to the acquisition of military surplus equipment. From 2006-2014, $343 million in drone technologies were distributed among U.S. police departments. (Katel, n.p.) Those ‘donations’ combined with other equipment, including armored vehicles, totaled more than $1.5 billion worth of surplus equipment which might justify the concern many Americans about the ‘militarization’ of the police. (Katel, n.p.)

VI. Policy and Protection

The Global War on Terror itself has directly affected the way the military is executing its mission as new methods of oversight have been put in place to reduce collateral damage. The current system of increased oversight includes over one hundred government officials who review every covert action before missions are executed. (Kent, 1061)

In the last several decades, there has been a "comprehensive integration of military lawyers into the targeting process" and all other aspects of war-fighting. One result has been the development of internal rules and processes that give great weight to minimizing anticipated harm to foreign civilians and foreign civilian infrastructure. (Kent, 1060)

Federal courts are also changing the established practice of normally supporting the Executive doctrine and are now reviewing Executive decisions with greater skepticism. (Kent, 1063)

The need for expanded government oversight for the domestic use of drones involves two key issues: First, unrestricted drone use creates a legitimate public safety issue. Second, drones pose a threat to civil liberties which are protected under the 4th Amendment of the U.S. Constitution.

Safety concerns stem from a wide number of problematic issues that drones present. First, although drones greatly reduce risks for their navigators, they are potentially dangerous to other manned aircraft and civilians on the ground. Second, drones have a much greater chance of crashing from mechanical failures than conventional aircraft. Finally, although usually controlled by humans, drone pilots may have much less situational awareness or lack the sense of urgency necessary for avoiding other aircraft.

Critics also say operators of remote-controlled craft are unable to follow a fundamental FAA safety guideline for all pilots: to “see and avoid” — that is, to be able to spot other aircraft in the air and take evasive steps to avoid collision. (McGlynn, n.p.)

Lawyers for the American Civil Liberties Union addressed the issue of privacy at a Senate panel in March of 2013,

The prospect of cheap, small, portable flying video-surveillance machines threatens to eradicate existing practical limits on aerial monitoring and allow for pervasive surveillance, police fishing expeditions and abusive use of these tools in a way that could eventually eliminate the privacy Americans have traditionally enjoyed in their movements and activities. (McGlynn, n.p.)

Concern for protecting privacy rights goes much farther than just the ACLU. A survey conducted by the Associated Press in December of 2014, found that 86% of those surveyed were concerned that private operators could violate other people’s privacy, while only three percent said they were not concerned at all. (Associated Press, “How concerned…”) Members of congress and intelligence community leaders have raised their concerns as well,

Remote-controlled drone aircraft, which increasingly are deployed for domestic surveillance. In June, FBI Director Robert Mueller said the agency has used drones inside the United States. Senate Intelligence Committee Chairman Dianne Feinstein, D-Calif., called drones “the greatest threat to the privacy of Americans.” (McCutcheon, n.p.)

Widespread concern for privacy is understandable, especially considering the fact that Americans have been subjected to questionable data gathering and surveillance techniques, that have implemented in post 9/11 America, as a result of policy changes, large scale expansion of the intelligence community and other impacts of the Patriot Act. Therefore, it would not seem too unreasonable to feel that some basic privacy rights have eroded in the name of preventing terrorism. This factor coupled with an overall sense of inadequate legislation, adds to the legitimacy of skeptics who wonder if they can trust legislators to protect privacy rights or if congress will favor law enforcement, intelligence agencies, and the military industrial complex. Furthermore, it may be unreasonable to assume that if ‘left to their own devices’ the intelligence community and law enforcement agencies would regulate themselves in a manner that prioritizes citizen privacy rights versus having access to the best equipment and less restriction.

As it stands, congress has placed the responsibility of regulating drones with the FAA. On June 21, 2016 the FAA released new guidelines, Part 107- Small Unmanned Aircraft Systems, this part of FAA regulation is expected to clarify much of the confusion regarding the definitions and limitations of these systems. (FAA, Press…) However, the FAA admits that they have not yet addressed privacy concerns, but plan to do so in the near-future. Critics, question the FAA’s capability to properly enforce laws and wonder if Congress has granted the FAA too much authority. (Jansen, n.p.)

States and municipalities have been actively developing their own regulations, “In 2015, 45 states debated 168 bills around drones, according to the National Council of State Legislatures. Twenty states passed least 26 pieces of legislation, the group said.” (Jansen, n.p.) Skeptics have also raised concern that a patchwork of laws from federal, state and local agencies will be confusing and problematic, while others argue that additional legislation will fill in the gaps of FAA regulation alone. (Jansen, n.p.)

The State of Oregon has been progressively passing legislation that greatly limits the use of drones while protecting the rights of the people. Some recent bills that passed are:

HB2710 - Law Enforcement & State Preemption. Effective: July 29, 2013

· Places limits on law enforcement use of drones.

· State municipalities are not allowed to pass their own drone ordinances.

HB2534 - Fish and Wildlife Commission. Effective: January 1, 2016

· Directs State Fish and Wildlife Commission to adopt rules prohibiting use of drones for certain purposes related to pursuit of wildlife.

HB4066 - Various Drone Regulations. Effective: March 29, 2016

Chapter 502 – Weaponization. Effective: June 29, 2017

· Illegal to weaponize or fire a projectile from a drone. (SDL, n.p.)

These laws are anticipated to have a large impact towards protecting the rights of Oregonians and will likely serve as examples of policy guidelines for other States to draw from.

VII. Analysis

After extensively researching this subject, several conclusions can be made regarding the “drone dilemma.” First, the fundamental challenges that we face when trying to control new technologies will always exist, rules will have to be made, and they must be carefully considered. Second, drones will always be both a public good and a public bad as there is simply no way to avoid all negative consequences they will present. Conversely, drone technology will also improve quality of life in many ways and will be way too valuable to ignore or attempt to ban outright. Third, public opinion concerning drones is basically all over the place. On one hand, a large majority of citizens are concerned about privacy. On the other hand, roughly half of the population is comfortable with expanded use by law enforcement. In fact, a 2013 poll revealed that 52% of those surveyed support the use of armed drones by law enforcement. (MUPI, “…situations) Only time will tell, if weaponized drones erode freedom and liberty as we know it.

Additionally, unmanned aircraft systems are only a part of the rapidly emerging technology that will present benefits and challenges in the future. With regards to the practice of hunter-kill missions and foreign policy, contrasting conclusions can be made based on the available evidence. First, research revealed that most Americans do in fact favor current foreign policy and strategies for defeating terrorism. In fact, a 2013 poll revealed that only four percent of those surveyed want the program stopped all together. (NBC/ WSJ, “And do you…”) Second, there is empirical evidence that suggests that the effectiveness of drone airstrikes is highly disputable. However, it seems that the level of oversight has also expanded along with the expanded usage, so for the time being it seems that U.S. leadership is exercising cautious restraint in some manner. Finally, in another surprising discovery, the support for granting greater power to federal law enforcement agencies has increased as well, in a 2013 poll, 44% of those surveyed favored armed drones patrolling the U.S./ Mexico border. (MUPI, …border)

Based on the information available, it would seem to be sensible for citizens to be curious and cautious about how America will adapt and utilize drones and other emerging technologies. In conclusion, as innovation continues to guide our pathway to the future, we must always ask the question, who holds the controls?

Associated Press. “How concerned are you that private operators…” Question 2 of 5, (December 19, 2014), in Polling the Nations. n.p.

Byman, Daniel. "Why Drones Work: The Case for Washington's Weapon of Choice." Foreign Affairs 92, no. 4 (2013): 32-43.

Cronin, Audrey Kurth. "Why Drones Fail: When Tactics Drive Strategy." Foreign Affairs 92, no. 4 (2013): 44-54.

Davis, Lynn E., Michael J. McNerney, James Chow, Thomas Hamilton, Sarah Harting, and Daniel Byman. "Armed and Dangerous: UAVs and U.S. Security." In Armed and Dangerous: UAVs and U.S. Security, 1-30. RAND Corporation, 2014. n.p.

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Monmouth University Polling Institute. “Do you support or oppose…border.” Question 5 of 5. In Polling the Nations. n.p.

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