Blog — Department of Justice

December 19, 2013

CREW Forces FBI to Release Documents on Domestic Drone Use

By Lucy Stein

Drone over desertOn June 26, 2013 — days after then-FBI Director Robert Mueller first revealed during his testimony before the Senate Judiciary Committee that the FBI had used drones to conduct domestic surveillance — CREW filed a FOIA request with the FBI seeking information about the FBI’s use of drones domestically.

CREW asked for documents showing the source of these domestic drones, how the FBI paid for them, who trained the FBI to use them, and any policies about this use — including legal justifications. Due to the widespread public interest in the issue of domestic surveillance and pressing questions about whether the FBI’s drone use complies with the law, CREW also sought to expedite the FOIA request.

The FBI, however, denied CREW’s request for expedition. On July 30, CREW filed a lawsuit against the DOJ challenging the FBI’s failure to produce any documents, and on October 30, the court found in CREW’s favor, ordering the FBI to release the requested documents on a rolling basis.

The FBI handed over its first batch of responsive documents on November 27. Much of the 400+ page release is redacted and details on the sources, costs, and deployments of drones are scarce. The documents do, however, make one thing absolutely clear: the FBI’s domestic drone surveillance program is on the course of expansion. And while CREW is determined to challenge the FBI’s heavy-handed redactions, CREW’s review of the documents produced some noteworthy information on the FBI’s domestic drone program.

In a heavily redacted FBI white paper on the agency’s unmanned aerial vehicle (UAV)—or drone— program dated September 13, 2013, the FBI lists the FAA’s regulatory authority over US airspace as its “primary obstacle” to operating drones domestically. But the white paper goes on to report: “The FBI has initiated a joint effort with the FAA, DOJ and other federal law enforcement entities to establish a nationwide, standing Certificate of Authorization for federal law enforcement use, which will greatly expand the FBI’s potential deployment scenarios for UAVs.” (CREW-792)

An internal FBI slideshow justifies the constitutionality of the FBI’s warrantless drone surveillance program citing case law on the constitutionality of warrantless manned aircraft surveillance. However, the agency’s legal analysis fails to address the distinction between the surveillance capabilities of small unmanned drones and traditional manned aircrafts, ignoring the attendant danger of a domestic drone policy that violates privacy rights. In an audit of the DOJ’s use of drones released in September, the DOJ Office of Inspector General determined the FBI had not addressed this danger and recommended the implementation of drone specific guidelines to protect privacy rights. According to a footnote in the audit report, FBI officials told auditors the FBI’s Office of General Counsel was "conducting a privacy review" of its drone program. No documents relating to this review were included in the batch of documents released to CREW in November.

Moreover, an informal email exchange that took place between June 28 and July 1, 2013, seems to indicate no such drone privacy review was underway. An assistant general counsel in the FBI’s Privacy and Civil Liberties Unit emailed an employee of the FBI’s Operational Technology Division (OTD) a “drone question” about the information the FBI gathers through its drone surveillance program: “what do we do with the info once we record it? How long do we store it? Do we share it w/ other agencies, either federal or state/local?” (CREW-763) Though the OTD employee’s response is largely redacted, he begins his answer with this explanation: “Please remember the UAVs basically falls under the same rule that our manned aerial surveillance program falls under.” (CREW-762)

Over the coming months, CREW expects to receive thousands more pages in responsive documents from the FBI. While this first batch revealed little of the substantive information requested in CREW’s FOIA, these documents did provide a bird’s-eye view of the policies – or lack thereof— that guide the FBI’s growing domestic drone program.

 

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