Drones in U.S. Airspace: Principles for Governance

Flying drones—unmanned aerial vehicles—have been made famous by their use in the war on terrorism, notably in operations in Iraq and Afghanistan, but such military drones are a small fraction of those used by the United States today. Thousands of drones are used for a wide variety of purposes, from scientific research to military operations. Both government and the private sector use drones mostly without weapons capabilities. Because of their wide-reaching surveillance capabilities, however, even unarmed drones could threaten personal privacy and civil liberties. As the Federal Aviation Administration develops regulations for the operation of drones in domestic skies, it should consider constitutional concerns and privacy rights...

Any guidelines must ensure appropriate protections of the freedoms guaranteed to U.S. citizens under the Constitution. The general rule balancing security and freedom is to be found, in large part, in the structure of American constitutional government itself. The protections codified in the Bill of Rights are an additional firewall against any intrusions on liberty that would unravel the checks in the Constitution. The Fourth Amendment’s prohibition against unlawful search and seizure is the right most directly implicated by unbounded and unrestrained use of domestic drones.
Now is the time to return to first principles of individual liberty in a free society and assess their interaction with technology and governance in an age of domestic drones. There are basic first principles that underlie any use of new technology and the existing constitutional limitations that might apply to drones. An assessment of these principles suggests that there are:

• Substantial liberty interests;
• Acceptable domestic uses of drone technology that should be permitted and in fact fostered, such as the use of drones to search for survivors after a disaster; and
• Prohibited uses of drone technology that raise significant questions of law and policy—such as the deployment of drones operated by the military within U.S. borders in a manner that violates existing rules (such as Posse Comitatus) on the use of military force domestically.

Beyond these uses, the challenge for the Administration and Congress is to define strict, appropriate implementation policies and oversight structures that can protect individual liberties while allowing appropriate uses of domestic drones with appropriate oversight.

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