 So now we're going to segue to our final discussion. Look up and smile for Big Brother. We've been tiptoeing around and engaging at the periphery a lot of the trade-off issues involving privacy and individual rights as we look at the expansion of these technologies. And that's an issue we're going to take head on in this our last discussion, which is going to feature, among other folks, Daniel Rothenberg, who also deserves a special shout out. Daniel is a professor of law at Arizona State University. And so a great partner to the Future Tense endeavor here and one of the masterminds behind not just this discussion but all of today. And the moderator here is going to be Matt Wald, who knows more about anything flying, I think, than any other living journalist. He's been at the New York Times for quite some time covering energy, the environment, technology. I was at the New York Times for a brief time and I know that any time there was anything breaking that involved the FAA aviation, I would run to Matt. And Matt would sit down and very patiently explain things to me, as he did with a lot of colleagues. He's a finalist for the 2011 Pulitzer Prize for International Reporting. Well, you never know. They could come back, you know. I was wrong. For team coverage of the tsunami nuclear disaster in Japan. So we're really fortunate to have Matt with us and he's going to introduce his colleagues. Thank you. Thank you very much. Welcome, everybody. You now know what the in-flight meal will be on a drone. You just ate it. We have two panelists today. Catherine Crump, who's probably fresh from the witness stand of testifying somewhere on the incoming threat. She is a staff attorney at the ACLU. She focuses mostly on technology and privacy. And I intend to ask her about all forms of technology and privacy, including the ubiquitous cell phone camera, et cetera, et cetera. She is a non-residential fellow at Stanford Center for Internet and Society. And Daniel Rothenberg, a professor of the practice of Arizona State University School of Politics and Global Studies and a Lincoln fellow for ethics and international human rights at ASU. And this could be an interesting, I hope this will be an interesting discussion. I wanted to start out with, I think, the question that's on everybody's mind, which is I've done a little skeet shooting in my time. Can I actually shoot these incoming drones in my backyard? And what will happen to me if I do? Can you shoot the incoming drone? Well, that's a good question. I guess we'll have to wait and see what happens when people start seeing these things buzzing over their backyards to try to do that, to see if we get an answer. I mean, it sounds like fun, right? I mean, you can hold the neighbor's dog hostage if he comes on your lawn one time too often. What can you do with a drone? We had some discussion earlier, some mention earlier, of the Jones case decided by the Supreme Court on drug, following drug suspects. In that case, it was whether it was constitutional, excuse me, to attach a GPS unit to somebody's car without a warrant. It strikes me that the court decided that case on the basis of physical intrusion. Attaching the GPS magnetic unit to the car was a form of physical intrusion. Drones are less physically intrusive. I want to ask about that in particular. And I want to ask each of you the broader question, which is, why are drones fundamentally different from the cameras on the street, which are either run by governments or available to governments, the cameras in my blackberry? I'm one of the last six Americans to use blackberries. And the other forms of social media privacy intrusion, what makes drones different from those other types? But let me start with the specifics of the Jones decision. Are drones different? I think the United States versus Jones decision is a good place to start, because it shows that concerns about particularly long-term location tracking aren't just concerns that the ACLU has, but that even people like Justice Alito, who I suspect has never been an ACLU member, share. In that case, the police, the law enforcement agents involved attacked a DPS device to a car and tracked a car's movements for 28 days without having a valid warrant. And the case made it up to the Supreme Court and a fractured Supreme Court held that that was a search under the Fourth Amendment. Five justices and an opinion written by Justice Scalia held that because there was a physical attachment of the GPS device followed by a gathering of information that the device was attached to the car, that that was a search. But there were also five justices. Interestingly, Justice Sotomayor agreed both the Justice Scalia's opinion and one written by Justice Alito, who held that at the very least, long-term tracking of someone's movements violates a reasonable expectation of privacy. And so I think that goes to your question. To the extent drones like GPS devices can track people wherever they go for prolonged stretches of time, many of the same concerns arise. I would suggest that it's not necessarily that drones are so different. It's that we're focusing on drones because drones coalesce a whole series of fears and a series of real technological changes. So all too often we hear this discussion. I mean, if you've been on these panels, people will come to you and they'll say things as almost apparently silly as, are you for or against drones? Are drones good or bad? And there aren't too many technologies where somebody would come to you and say that, even technologies that are problematic we heard earlier today about even the Google car doesn't seem to elicit that response. So I don't think it's that the drones per se are always different, but there's something about what's going on with the discussion of drones that's focusing our fears and concerns so that it's a place for discussion, whether or almost whether we like it or not. Well, let me pull you both back to the Jones decision. As Catherine laid out, some of the justices said it was unconstitutional because it was persistent and some of them said it was unconstitutional because it was a physical intrusion. In that sense, the majority of the court seems to have said that it was less of a challenge than other technologies. Excuse me, because of course, they were writing about a magnetic GPS sensor or a broadcaster, but it was less of a challenge because it did not involve physical contact. Are we approaching this rationally? If we now have, suppose just for a moment that the police had not used a magnetic tracer on the car, instead they used a drone, how would that have come out legally at the Supreme Court and how should we think about that? What might be analogous is there's thermal imaging that's already been used and as you well know, there's a whole body of case law where you can drive by a home and it's typically used to find marijuana growing and where you see large amounts of power usage. And I think we're embarking on a new era. This is really just the beginning of these kind of legal discussions as these technologies become more pervasive, as they become more and fundamentally intrusive. It's not really clear that tracking is about aerial surveillance at all, in fact, as we well know. Right, but would the drone have passed muster with the Supreme Court if the police had used a drone instead of a GPS unit? I hope not. But it would, wouldn't it, because the swing vote was on the question of physical intrusion. I don't think it would have actually. Four justices led by Justice Alito signed a plurality opinion that said because the long-term tracking intrudes upon a reasonable expectation of privacy that there was a fourth amendment search. Justice Sotomayor, the fifth vote for that position, agreed that at least long-term tracking and perhaps even short-term tracking infringes, is a fourth amendment search. And logically speaking, it shouldn't matter whether you're being tracked by a drone, whether you're being tracked by a GPS device physically attached to a car, or through that blackberry you're holding right now. If the granularity of the data and the length of time on which it's being tracked is 28 days or 30 days, then it should be the same regardless of the technology. And the Supreme Court hasn't necessarily grappled with that question yet, but I don't think we can necessarily expect it to do so quickly. It took until the 1960s for the Supreme Court to rule for the first time that eavesdropping on a telephone call implicates your, is a search under the fourth amendment. And I think that's why you see this legislative push, both in Congress and around the country, to try to enact some rules of, try to enact some rules, as Justice Alito essentially asked Congress to do in his decision in Jones. Let me ask the extent to which this is a problem that citizens face with their government, citizens, residents, illegal aliens face with the government, and to what extent it's a problem that citizens have with each other. Let me be slightly anachronistic. Suppose we were replaying the Monica Lewinsky scandal today. I would imagine that she would be tracked by drones and not by government drones, by private drones. To what extent is our concern about drones, our concern about our neighbor versus our concern about our government? And to what extent should it be? Well, clearly, there are far more legal restrictions on the government's surveillance activities. So in a certain sense, what you're opening up is this area that we can only imagine, right? Where suddenly all of us and our neighbors and various other players have access to any number of different surveillance data. It's hard to even know where to begin if that popularizes the way you suggest. You can begin at YouTube, it's there already. We've been fortunate though that there haven't been as profound, scandalous intrusions as you could imagine with long-term tracking and the like, right? I would imagine this would be a way for, for example, drug, illegal drug distributors to keep track of their retail operations. I would imagine this would be a way for legal commercial operations to keep tabs on each other. Commercial surveillance, surveillance by people who have feuds. Are we gonna end up, I know both of you focus mostly on the constitution which regulates the relationship of the government to people. Are we gonna end up in a situation where the real issue is people to people? Or is this something we ought to be worried about? I think that is the hardest question in this entire debate. Because there is a First Amendment. The ACLU prides itself on being a strong First Amendment supporter. There are many drone enthusiasts here today and we have always believed that the First Amendment protects your right to take photographs, particularly in public places. Nonetheless, those of us concerned about privacy are concerned about the possibility of people being subjected to persistent aerial surveillance, not just in places where that's traditionally been the case, but also potentially in people's backyards or for longer periods of time. And those of us concerned about government surveillance realize that any restrictions on government surveillance aren't going to be worth a hill of beans if the government can simply purchase the identical information from a private party. And so what is the answer to all of this? That is an excellent question. There are some traditional laws in place that have always been there, anti-stocking, anti-Paparazzi laws which have upheld constitutional, which have survived constitutional muster, restrictions on peeping toms. And I think one thing we will see is that as these drones become integrated into the US airspace, there will be lawsuits and the law will start to organically develop and we will see how much more restricted those laws become over time. Dan, is that the right way to do it? I think what Catherine is talking about is a sort of maturation and extension of common law. Is that the appropriate way to do this or do we need legislation on this? Well, there will be legislation on this, right? Okay. I think as we see, so let's leave drones per se aside for a second in the idea that right now we're just talking about this thing that hovers over for extended periods of time and has this sort of singular advantage of being aerial. Yes. But that really isn't what's at the heart of what's troubling to Americans. It's not even at the heart of what's been, about where this debate originated in the zone of war and how it migrated to the domestic sphere. So if we just think of drones as a stand-in for all of these complex, intrusive surveillance mechanisms. It's a blackberry with wings. With a blackberry with wings and imagine that the data can be multiply analyzed. We don't know where it's going. I think what's most important about this drone discussion is that it's very alive, strikingly more alive than multiple other elements of a surveillance state like our phones, for example. We're in a world where there's so much data being collected. There is no question that there will be some kinds of legislation. But as we know, legislation in and of itself is not as powerful often as its intentions would desire. And what is powerful is we don't have a social set of mores on this. Is that what we need? We have some sense of what is appropriate for where I can park my car, where I can take my dog. Not what I can do with my drone. Yes, I think that is one of the things that's needed. But I think it's also, I think you make a really interesting point. And I think it shows how the debate around this technology is so different from the debates around previous technologies, right? Typically a police department simply purchased a technology in months or years later, the public learned that it's being used at which point you were told what's the problem? This technology has been in use for years. No one's been complaining, right? In this case, because there has been a prohibition on the use of drones domestically and we have this integration process. We are actually having a public debate, right? Forums like this, state legislation being proposed. And it's democracy at work. And good to see rather than the fate of complete, which is normally how technology is adopted. What is the proper democratic forum for this? Was it, someone mentioned earlier, Seattle, the police department bought drones and was barred from using them. I, as a private citizen, presumably go to Seattle and use a drone. There are states that are legislating, counties, towns that are legislating. Do we need, is a national standard desirable? Is it achievable? Is it legal? There'll have to be a national standard for certain kinds of integrated drone use, right? As is part of the FAA plan. But you're getting to a deeper question, right? Well, I think it's used, right. As opposed to, we can leave the safety issue to the FAA. The FAA, to its credit, will throw up its hands and say, I don't know nothing about privacy, which is true, it's not their specialty. They're good at keeping planes from crashing into each other. I mean, the interesting question is, are we better off with what's likely to happen, which is no singular centralized legislative system coupled with multiple cases that process their way through multiple different jurisdictions over a lengthy period of time that then defines what the law of the land is. Is that better, or would it be better if from the top down there was a singular system? I think the first option's more likely, but it's an interesting question if we'd be better off with a more efficient centralized system. I wanna pick up on one thing that you said earlier, though, which is that the FAA, to their credit, in some sense may wash their hands of this privacy issue, but I don't think that's to their credit. There are all sorts of government agencies which routinely take privacy into account. The Department of Homeland Security may primarily be a Homeland Security Agency, but that doesn't excuse them from looking at how their rules and regulations impact Americans' privacy. So too should the FAA take privacy into account, because at the end of the day, they have no choice but to impact Americans' privacy. And the decision not to act is a decision that we will have a diminution of privacy. And so the idea that they can somehow be a neutral actor in this is simply not one that flies. Well, it flies. Oh, wow. Can I take that back? It's Washington. You can revise and extend your remarks. Which I will do right now, and it's related to the last question, which is there are a lot of things the FAA is very good at, and kinda like the waiter at lunchtime who says, I'm sorry, sir, that's not my table, there are a lot of things the FAA has no experience with. One suspects there must be a better forum for these decisions to be made. Some agency that has better public representation and more expertise in dealing in this kind of question, I wonder what you think that agency might be. It's turning into a bunch of city councils, some state legislatures, possibly at some point to Congress if they can ever agree on anything. I wouldn't put it at the absolute top of the list of things I wish Congress would come to resolution on, but the FAA would issue a decision on this, would have so many acronyms in it, nobody outside the FAA would know what it meant. They're very good at what they do, but they don't do this stuff. Who ought to be doing this stuff? Isn't the problem that, so the FAA will play a useful role, let's hope, in regulating this flying thing? Yes. But that really isn't, I think, the core issue. So it wouldn't be reasonable to expect the FAA to get into the complicated question of surveillance and data in general. Your question of what would be the right government agency is that's not an easy question to answer. I'm pretty sure, though, we're at the beginning of something quite transformative in terms of what all of this is going to mean socially. It can't be a phenomena that has a quick legislative fix. It's a broader issue than that. Are we, well, it probably doesn't have a slow legislative fix either. Are we over-focused on unmanned aerial systems in the sense that the street you walk down to get here is covered with cameras? The internet provides the ability to track all kinds of transactions, all kinds of personal activities. A lot of that tracking can be done by government. Again, some of it can be done by individuals. Are we focusing all our anxieties on drones inappropriately, or maybe we're doing it appropriately? Well, I think because drones haven't been yet integrated into the US airspace in an extensive way, there's an opportunity here that isn't necessarily present with other technologies to get in on the ground level and try to regulate them that way. But I agree with your fundamental point, which is that there are all sorts of technologies which enable the collection of information about Americans and their tracking as never before. And in some countries, they may take a global approach to privacy regulations. We've tended primarily to do things sector by sector, so we have a special law for protecting video rental records and a special law for protecting other forms of location tracking. What is a video rental? I'm not familiar with this term anymore. Oh. Right. What is a video? Yeah, right. So we could continue to take an incremental approach, but in some ways, what we should do in a perfect world is not the question. The question is, what are we likely to do? And we've traditionally regulated technologies on a technology by technology basis, and so that's likely what's going to happen here. So if you were in charge, if you had a supermajority in the Senate, if you could posit a code of conduct, a code of rules, what would it say? What do you want? Oh, well, on the drone issue, I should hasten to add that the ACLU is not opposed to the use of drones, right? This circles back to something you were saying earlier, which is that there are many terrific and beneficial uses of drones which are absolutely appropriate, and we've heard about a number of them today. But I do think that they also pose unique privacy threats, particularly when long-term surveillance is at play. And we think that the core of what we would like is when law enforcement is using drones for them to use drones, when they have a specific reason to believe that use of a drone is going to turn up evidence of a specific instance of wrongdoing. Probable cause. We don't necessarily even advocate a standard as high as probable cause for certain uses of drones, although we wouldn't object to such a standard. This is the only time in my ACLU career where I've been outflanked to the civil libertarian side by members of the Tea Party, and particularly who've advocated a probable cause standard. And I think this raises another interesting issue which is really talking about, you know, drone is such a broad term, right? And we can talk about something very tiny whose capacity is relatively limited or something that, you know, can engage in a surveillance of a large geographical area in a persistent way. And so the smaller drones are in some sense, at least right now, of less concern because they are just more likely by their nature to be used in a targeted way. Whereas the more persistent drones, I think, raise more grave civil liberties concerns from our perspective. In other words, broad surveillance is more worrisome than targeted individual surveillance. Thank you for saying in 15 words what I was trying to get at. I suggest that we're actually lucky to have the drone debate because, and I also would suggest that drone is the right term to use as some others have mentioned because it carries with it, so it may be inaccurate in some degree and those in the industry don't like that inaccuracy, but in fact, it carries with it a sense of foreboding and fear that I think is very real. And for a whole set of reasons that we understand and may not understand right away, the way in which drones have captivated the public and captivate us now is allowing for a discussion that previously just wasn't quite coming to the fore. And I think it has a lot to do with its migration from the military use and its terrifying use in military contexts. Legal or illegal, depending on how you understand it, but its terrifying power in a way that speaks of a future that's uncertain for this reason it pulls at our fears and concerns and I don't think that we should in any way, we should embrace and engage those fears. So drones are, we're lucky to have this drone debate. My personal view is a little different which is Customs and Border Patrol which flies big drones has crashed half the ones that ever bought. And the small ones, they have a military connection but they really are blackberries with wings. They're outgrowths of the cell phone and I'm not quite so worried about what happens with the large ones and the government as the $500 drone that I could buy for any personal or business use and learn to operate pretty promptly. But enough of my anxieties, let's try out the anxieties in the room. I see a question in the far back there, yes, please sir. Hi there, my name is Rahul Man-Sinhat. My question is taking this back to the concern about sort of citizen versus citizen surveillance. Ms. Crump mentioned anti-stalking laws but what do you believe the threshold should be for the government's ability to buy or acquire privately recorded surveilled information whether it's by drones or whatever other source? That's a good question. Well I think if it's going to be effective it probably needs to be analogous to whatever standard they have to meet to engage in that surveillance itself. Because if it's a different standard then you'll just incentivize one versus the other which isn't the point. Dan, do you agree? Yeah, it just seems so, it really depends on what this commercial data is and obviously how it's used. It seems like an open world, right? Certain data is openly available and doesn't seem problematic. Other data would seem enormously problematic and also wouldn't actually hold up in court, right? If that was the purpose of the data. Well are we gonna get to the point where instead of seeing a poster that says $10,000 reward for information leading to the arrest and capture of blah, blah, blah it'll be $10,000 reward for video leading to the arrest and capture of blah, blah, blah? Is that good or bad? I mean some level of it is inevitable, isn't it? I think that's, in some ways it's useful that we tend towards the is it good or bad but the real story is I don't think there's certain aspects of this progression that are unstoppable. Yes, yes. Over here, thank you. I've always wanted to design a beach ball you could stick a microphone in to be able to pass it around a room like this. I'm wondering, that's a good point I'm thinking too simple. I'm wondering what the panelists think about the potential for drones or whatever drones particularly, technology is to sort of push the envelope in terms of a reasonable expectation of privacy because right now I don't think you can buy a commercially available drone with synthetic aperture radar which is a type of technology that can see through certain kinds of diffuse materials like window shades and get into fourth amendment protected spaces and things like the Kylo kind of thermal imaging kind of things. I'm just wondering is that not a choke point for actually starting a discussion about that specific issue itself and being able to delineate certain kinds of as a technologist certain kinds of physics that we shouldn't impose either in a reception sense or in an emission sense emitting certain like lasers versus actually capturing optical light anyway. But these are technologies I could buy today for personal use or business use just not put on a drone. These technologies exist on manned aircraft and on a lot of more advanced unmanned aerial systems but I don't think you, I don't know someone in the room may know if you can actually as a private citizen buy these things. Maybe I mean you could probably easily contract when they're not, it's not like you need a special license to operate certain of those things. Well your question made me think of something a little bit different. So one are all these evolving technologies and I think thermal imaging already as it's widely used in drug cases and it's brought up a huge amount of concern and we're only going to see more and more impressive and invasive technologies for sure right. But what I think is maybe more fascinating is the current way one of the ways that drones are used now in the military arena is for patterns of life as they call that where complex data of the way people live is gathered, aggregated, analyzed such that targeting decisions are made based on all of this and if we think about that idea transferred to the domestic space which in fact it already is in non-technological ways right there's lots of profiling but imagine if the profiling was bolstered by 24 seven data it would be a whole other understanding of what criminal profiling would be and that's a direction to think about but it's also a direction to be concerned about. I think your question highlights one of the difficulties of talking about drones in the abstract because what a drone can do in terms of surveillance really depends on the camera attached to it and what other technologies are in play. And your question specifically was about how drones might impact the reasonable expectation of privacy and that sort of depends on what that reasonable expectation of privacy tests that the Supreme Court has established ends up meaning. You were talking about thermal imaging in Kilo the Supreme Court held decades ago that when the police take a thermal image of a house and learn things about what is happening inside the house that they could not otherwise know that is a search that requires a warrant but it reached that conclusion on the understanding that thermal imaging technology was not at that time in widespread use and I think there are real questions today given the fact that many high-end cars have thermal imaging technologies now built into them whether what the Supreme Court concluded in that case is true anymore does thermal imaging actually implicate a reasonable expectation of privacy. So I think one of the synthetic aperture radar that you were talking about is not in widespread use and so if that were used you could certainly see how something like that would implicate a reasonable expectation of privacy and therefore fourth amendment concerns whereas simply attaching your standard digital point and click camera to a drone wouldn't necessarily raise the same types of concerns. The go, the ubiquitous GoPro 3 soon to be replaced by the GoPro 4 and God knows what that one will do, right? Right, over here, thank you. Oh, I'm sorry, go ahead. Assuming the widespread consumer use of drones, oh, sorry, my name's Godham Hansen, I'm a CDT. Do you think or could or should the Supreme Court reconsider or limit the third party doctrine? Explain what the third party doctrine holds that if a private citizen gives information to law enforcement, that information may be used, what? Maybe use by law enforcement in a trial without the prior judicial review. So the question was about the third party doctrine and so the third party doctrine holds that if you reveal something to any third party then you have no fourth amendment reasonable expectation of privacy in it and if that is the case then the game is over and we are done and none of us have any privacy interest anymore because today your email is held by Gmail, third parties have all sorts of information on people. I am optimistic that that doctrine will not, in fact, swallow the entire fourth amendment rule. I simply don't think it can be the case. I think that doctrine is articulated in a very different time and that, for example, the Supreme Court would never conclude that you have no fourth amendment privacy right in your email simply because Gmail has it rather than your mail being transmitted by the postal service and I think drones could play a role similarly there. William Angel, again, given the increased proliferation of drones and the decreasing cost of advanced sensors, should we be more worried about a little brother scenario or little brother's plural? Your neighbors with their drones with maybe $1,000 drug detector attached, wandering around, smelling all that marijuana you're growing and then blackmailing you over that. Should we be more concerned? Should we be more concerned over being blackmailed by neighbors and private citizens than we should of big brother collecting all of our information to use against us? And if you were concerned, how would you address the concern? Do you mean something about it? We're all looking at each other. I think we're all sort of looking at each other because I think it's quite possible that what you suggest will be a serious concern, that technology across the board is going to get so cheap and so powerful that it's going to be used in all sorts of ways that we haven't necessarily even anticipated yet. But I have to say sitting here today, playing all of that out and figuring out what to do about it is more than I can do, but fortunately not more than we need to do and we can take things one step at a time. I mean, sure is the quick answer, but we can analogize these new set of technologies with other once revolutionary technologies that allowed for the private recording of information, say cameras, which one point of time were radical, recording devices of simple handheld varieties. Have they been used for blackmail? Of course. Would legislation have prevented private citizens from doing that? Probably not. No doubt there will be some forms of blackmail, of harmful use of whatever emerging technologies are coming down the pike. We have time for one more. Can I have a quick follow-up? Go ahead. Should we be more worried about that, about little brother than we should about big brother, in your opinions? You're reiterating my question. That's right. Because it's not the $1,000 sensor, it's really the $250 setup. We could have a changing social moray where 20 years from now, my grandchild asked me what? You don't have aerial shots of my mother's wedding. Didn't you have drones back then? I mean, we have an established set of principles that help guide us in limiting state behavior, or at least we hope they help guide us in limiting state behavior. I think when it comes to limiting what private citizens do, we can't just turn to legislatures and the like. This is an interesting question. What's going to happen to our society? Like you say, morays, are we going to develop ways to be respectful of each other and deploy all of these invasive technologies at the same time? Or change our definition of what's respectful. Sure. I think you're right in pushing the idea that the private use could end up being the more privacy invasive, because as you were starting to say, the government is something that you can regulate. You can find it and you can regulate it. Even third-party intermediaries like the big internet service providers, there's telecommunications companies that now have so much data about all of us. Even there, there are a finite number of them and they can be regulated. But when you start talking about cheap and easily available technologies being in the hands of every American, it definitely poses a more difficult thing to potentially limit. And I should say that this is all a rather hypothetical discussion, and I think most uses of unmanned aerial systems are going to be pretty boring. Flying between the rows of corn, looking for signs of where the corrosion is on the bridge or whether the power line is down, et cetera. And some of this discussion five years now is going to look prescient and some of it's going to look off base. And we'll come back in five years and discuss it then. Thank you all for your kind attention.