The use of drones on American soil came to the fore in March, when Sen. Rand Paul “talking filibuster[ed]”of the confirmation of John Brennan as Director of Central Intelligence. Mindful of the killing of al-Qaeda activist and U.S. citizen Anwar al-Awlaki by weaponized drone—after an Article II-only deliberative process—in Yemen, Sen. Paul insisted on a clear statement from the Obama Administration that it did not possess “the authority to use a weaponized drone to kill an American not engaged in combat on American soil.”
Sen. Paul’s particular focus on drones was curious: one would think that the chief concerns with executive killings of this sort would relate to the lack of Article III process and use of the substantive threshold of enemy combatant status, rather than whether the instrument was a drone or a SEAL teams. But the attention that Paul nonetheless drew to the potential use of drones in America raised a public debate about the proper usage and procedures for private and public drones alike. The debate particularly illuminated the scope of surveillance potentially enabled by a world of ubiquitous flying cameras, as well as its impact on what our reasonable privacy expectations are in the 21st century.
Amidst increase awareness of the implications for privacy law raised by the drone future, several members of Congress have introduced legislation to regulate domestic drone use. The Center for Democracy and Technology has helpfully summarized bills targeting privacy issues raised by non-weaponized drones introduced by Reps. Ed Markey and Joe Barton, and Reps. Poe and Lofgren. Both bills would increase oversight of use of drones by law enforcement agencies and constrict the scope of private actors’ permissible use of drones. While both bills (and others) are still pending, they mark some of the first attempts by legislators considering drones’ potential to challenge bounds of privacy in the physical space just as the internet has challenged bounds of privacy in the communicative space.
For the Center for Democracy and Technology summary: https://www.cdt.org/blogs/gs-hans/0804drone-privacy-bills-attempt-protect-americans-governmental-commercial-surveillance