DOJ Releases Surveillance Drone Policy, Undercuts Accountability Claims By Exempting It From Use In Court

from the tl;-dr:-we-can-kind-of-do-what-we-want-until-further-notice dept

The FBI won't tell you how its drone usage affects your privacy. It has withheld every page of its Privacy Impact Assessment from FOIA requesters. In fact, it now claims it can't even find the withheld document, so that avenue appears to be a dead end. The DOJ, which oversees the FBI, hasn't offered any further insight into its assorted agencies' drone usage (other than those forced out of its hands in relation to its justification for killing people with weaponized drones). It's been almost a decade since the first reported use of (non-killing surveillance) drones under the DOJ's watch, and only now do we get to see how it weighs citizens' privacy against the needs of law enforcement.

The undated "Policy Guidance" document asserts that unmanned surveillance is likely a net gain for Americans, seeing as law enforcement has used drones in kidnapping investigations, drug interdiction efforts and search-and-rescue operations. (It doesn't, however, make any mention of the OIG's determination that the FBI and ATF's drones are mostly useless and expensive.) But it lays down this "guidance" (which covers all agencies under its purview) with a comprehensive caveat.

This policy guidance is intended only to improve the internal management of the Department of Justice. It is not intended to and does not create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative, judicial or any other proceeding.

So, no matter what's claimed about the DOJ's concerns for privacy, nothing in this document can be used against it in court. Handy.

The document brings up the Fourth Amendment -- which would tend to indicate the need for warrants -- but it quickly goes another direction, suggesting drone usage will be subject to the whims of internal policies, rather than the Bill of Rights.

UAS may only be used in connection with properly authorized investigations and activities. Statutory authorities, the Attorney General's Guidelines, and other relevant agency policies and guidance define the scope of authorized investigations and activities and require regular supervisory review and approval. UAS must continue to be used within the context of these existing safeguards.

The document warns that the intrusiveness of investigative techniques must be weighed against investigative "needs" and that law enforcement agents should opt for "least intrusive" rather than "most efficient." But, once again, this is left to their discretion, rather than held against any sort of baseline standard.

Under "Protection of Privacy," the DOJ points out that collections and disseminations must adhere to applicable laws and policies. It limits the retention of non-investigative "information" to 180 days, with a couple of exceptions.

...unless retention of the information is determined to be necessary for an authorized purpose or is maintained in a system of records covered by the Privacy Act…

In addition, the DOJ demands a form of accountability, one that begins with proper training and ends with demands for approval for relevant supervisors. What's not included in the discussion are the consequences for violations of these loose guidelines. There may not be any, other than whatever unspecified internal punishments will be handed out by agencies. The DOJ has already made a play for quasi-immunity -- at least in relation to its drone guidance -- by opting itself out of drone-related litigation with its opening footnote.

In doing so, it makes all of its claims about carefully crafting privacy-sensitive policies essentially worthless. If abuses can't be challenged outside of the agency, then there's really not much in the way of actual accountability. Internal accountability does count for something, but attempting to undercut Americans' right to seek redress for grievances gives the DOJ permission to slap its own wrist when surveillance gets out of hand.

On the plus side, the agency is also implementing a more comprehensive and streamlined reporting process that will generate informative records of UAS deployment. (Whether these can be successfully FOIAed remains to be seen.) It also promises to post information on drone flights regularly at its website, hopefully not in a redacted-to-uselessness form.

Filed Under: doj, drone policy, drones, exemptions, surveillance