On July 29th, Senator Rand Paul (R-KY), received a letter from the Federal Bureau of Investigation (FBI) responding to his questions around the Bureau's use of drones. Sen. Paul made it clear that he will not pursue his inquiry further at this time, clearing the way for the eventual confirmation of James Comey to lead the Bureau.
But while the FBI's letter does provide some meager answers, what is more notable about the correspondence between the Senator and the FBI is the lack of real information it reveals.
Much like National Security Agency (NSA) spying, Foreign Intelligence Surveillance Act (FISA) courts, and other secret law, the government has made clear yet again that policies and procedures that purportedly protect civil liberties will not be revealed to the public. Perhaps the secrecy is because those policies do not, in fact, include adequate protections.
As we reported a few weeks ago, during a Senate Judiciary Committee hearing, current FBI director Robert Mueller admitted that the FBI uses drones to conduct domestic surveillance. When questioned further, he admitted that the Bureau was only “in the initial stages” of developing policies and procedures for the drone program.
The day after the hearing, Senator Paul issued an open letter to Director Mueller asking for specifics on the program by July 1. He requested transparency on the secretive program, including the number of drones the FBI has, whether they are (or could be) armed, and what privacy protections are or will be in place. Unsurprisingly, the FBI declined to respond. Senator Paul sent a follow up letter on July 9th again requesting a response.
[A]gents have flown drones over U.S. airspace a total of 10 times in the past seven years....UAVs have been used for surveillance to support missions related to kidnappings, search and rescue operations, drug interdictions and fugitive investigations. Since late 2006, the FBI has conducted surveillance using [Unmanned Aerial Vehicles] in eight criminal cases and two national security cases.
Senator Paul again followed up on the FBI’s July 19th correspondence, noting :
While I agree that warrants should be used to approve information collection-including information collected through drone surveillance-this protection could be undercut by the Bureau's interpretation of what constitutes a "reasonable expectation of privacy....it is important that you clarify your interpretation of when an individual is assumed to have a reasonable expectation of privacy.”
This time, the FBI promptly responded, clarifying that it bases its interpretation of reasonable expectation of privacy on the Supreme Court cases California v. Ciralao, Florida v. Riley, and Dow Chemical Co. v. United States. Senator Paul responded by saying : “I have decided to release my hold on the pending FBI director nominee.”
While Senator Paul’s search for at least some answers is commendable, his concerns have hardly been addressed.
Based on the FBI’s claims in these letters, the FBI’s secret policies and procedures clearly rely on an analogy between drone surveillance and other forms of surveillance. The Bureau specifically notes that drone use is covered by the rules governing aerial surveillance. However, as concluded by an April 2013 Congressional Research Service report on the Fourth Amendment implications of drones, traditional legal rules surrounding aerial surveillance are hardly sufficient to address the technical capabilities of drone surveillance.
More importantly, this pattern of secret supposed protections for civil liberties is unbelievably Orwellian, creating a classic case of the fox guarding the henhouse.
Protections do not work outside of an adversarial process in which they can be enforced, generally through the courts. Not only has the FBI not defined its policies, but one of its responses to Sen. Paul remains classified. A disturbing pattern is clear: from cases like Clapper v. Amnesty International to the secret deliberations of the FISA court, which supposedly provide appropriate protections from government overreach, we are playing a game where only one side knows the rules. The only option now is to say no to the game.
For now, no further answers will be forthcoming.