In the new music video from OK Go, the band uses a drone with a camera to capture some fantastic footage. Businesses, artists, and hobbyists are using drones for a variety of purposes. But, the rock group didn’t film the music video in the United States. They filmed it in Japan and one possible contributing factor is that filming the video in the U.S. may have been illegal. The laws and regulations governing drones are still being sorted out by authorities. Both state governments and the federal government have started to take notice of the problem. Civil liberties advocates have emerged in support for strong federal oversight of drone surveillance to ensure that privacy is protected. Others argue that states and their preexisting privacy laws are already equipped to deal with nongovernment drone surveillance.

Photo credit: OK Go https://www.youtube.com/watch?v=u1ZB_rGFyeU

State Privacy Law

Wells C. Bennett’s recent report Civilian Drones, Privacy, and the Federal-State Balance describes how most state privacy laws could be applied to drone operators. Most states offer three general types of privacy protections:

1. Protection against intrusion: Common law that makes it unlawful for a person to trespass on someone else’s property.
2. Protection against aerial surveillance: Laws in this category are either criminal or civil in nature and aim to specifically block aerial surveillance.
3. Anti-Voyeurism: These laws deal with “peeping toms” and other moments when people have an expectation of privacy.

Federal Aviation Rules

Those who believe that drones ought to be heavily regulated argue that the Federal Aviation Authority (FAA) should introduce strong new rules. In 2012 Congress has called on the FAA to develop new rules for drones by 2015. The FAA has long regulated aircraft of all types but the agency has less experience with privacy issues. In 2013, the agency selected six test sites where it would be legal to fly drones. The operators at these sites were required to abide by privacy rules the FAA created, which over time developed into a set of comprehensive standards. These standards ultimately remained applicable to test sites only as the agency was reticent to enforce privacy regulations for the whole country. However, the standards still serve as the foundation for the FAA’s roadmap to integrating drones into American skies and as a set of recommendations for policymakers.

The FAA’s reticence to regulate privacy creates a policy conundrum. Bennett proposes an approach that involves the states taking the lead with policy. The states already have a broad, legal framework that can be applied to privately owned drones. Where the states lack authority, Bennett suggests the Federal government can fill in the gaps. This mixed approach allows the states to use tested privacy laws and for the federal government to wait until it has the mission-critical data necessary to even begin crafting regulations for nongovernment drone surveillance.

Matt Mariano contributed to this piece.

Businesses, citizens, and law enforcement officials are discovering innovative new uses for drones every day. Drones have a distinctively menacing reputation because TV footage typically depicts them flying over a faraway battlefield launching missiles. In the popular imagination, drones have replaced the black helicopters of the 1990s and the satellite images of the 2000s as the primary surveillance tool. For this reason many perceive the drone as a threat to civil rights and safety in the United States. Privacy advocates have called upon lawmakers to pass legislation that keeps drones out of American skies. Others see a potentially beneficial role from drones if effective regulations are developed. In a recent paper titled Drones and Aerial Surveillance: Considerations For Legislators, Gregory McNeal proposes a model for how Congress should regulate drones.

President Obama's announcement last month that earlier this year a “U.S. counterterrorism operation” had killed two hostages, including an American citizen, has become a fresh occasion for questioning the rationales for continuing attacks from unmanned aerial vehicles aimed at presumed, suspected, or even confirmed terrorists. This questioning is desirable, although not mainly for hostage-related reasons connected to this incident. Sometimes an incident has a sufficient element of controversy to stoke debate even though what most needs to be debated is not an issue specific to the incident itself. More fundamental issues about the entire drone program need more attention than they are getting.

The plight of hostages held by terrorists has a long and sometimes tragic history, almost all of which has had nothing to do with drones. Hostage-taking has been an attractive terrorist tool for so long partly because of the inherent advantages that the hostage-holders always will have over counterterrorist forces. Those advantages include not only the ability to conceal the location of hostages—evidently a successful concealment in the case of the hostages mentioned in the president's announcement—but also the ability of terrorists to kill the hostages themselves and to do so quickly enough to make any rescue operation extraordinarily difficult. Even states highly skilled at such operations, most notably Israel, have for this reason suffered failed rescue attempts.

It is not obvious what the net effect of operations with armed drones is likely to be on the fate of other current or future hostages. The incident in Pakistan demonstrates one of the direct negative possibilities. Possibly an offsetting consideration is that fearing aerial attack and being kept on the run may make, for some terrorists, the taking of hostages less attractive and the management of their custody more difficult. But a hostage known to be in the same location as a terrorist may have the attraction to the latter of serving as a human shield.

The drone program overall has had both pluses and minuses, as anyone who is either a confirmed supporter or opponent of the program should admit. There is no question that a significant number of certified bad guys have been removed as a direct and immediate consequence of the attacks. But offsetting, and probably more than offsetting, that result are the anger and resentment from collateral casualties and damage and the stimulus to radicalization that the anger and resentment provide. There is a good chance that the aerial strikes have created more new terrorists bent on exacting revenge on the United States than the number of old terrorists the strikes have killed.

This possibility is all the more disturbing in light of what appears to be a significant discrepancy between the official U.S. posture regarding collateral casualties and the picture that comes from nonofficial sources of reporting and expertise. The public is at a disadvantage in trying to judge this subject and to assess who is right and who is wrong, but what has been pointed out by respected specialists such as Micah Zenko is enough to raise serious doubt about official versions both of the efforts made to avoid casualties among innocents and of how many innocents have become victims of the strikes.

The geographic areas in which the drone strikes are most feasible and most common are not necessarily the same places from which future terrorist attacks against the United States are most likely to originate. The core Al-Qaeda group, which has been the primary target and concern in northwest Pakistan, is but a shadow of its former self and not the threat it once was. Defenders of the drone strikes are entitled to claim that this development is in large part due to the strikes. But that leaves the question: why keep doing it now?

The principal explanation, as recognized in the relevant government circles, for the drone program has been that it is the only way to reach terrorists who cannot be reached by other tools or methods. It has been seen as the only counterterrorist game that could be played in some places. That still leaves more fundamental questions about the motivations for playing the game.

Policy-makers do not use a counterterrorist tool just because the tool is nifty—although that may be a contributing factor regarding the drones—but rather because they feel obligated to use every available tool to strike at terrorists as long as there are any terrorists against whom to strike. In the back of their minds is the thought of the next Big One, or maybe even a not so big terrorist attack on U.S. soil, occurring on their watch after not having done everything they could to prevent it, or doing what would later be seen in hindsight as having had the chance to prevent it.

The principal driver of such thoughts is the American public's zero tolerance attitude toward terrorism, in which every terrorist attack is seen as a preventable tragedy that should have been prevented, without fully factoring in the costs and risks of prevention or of attempted prevention. Presidents and the people who work for them will continue to fire missiles from drones and to do some other risky, costly, or even counterproductive things in the cause of counterterrorism because of the prospect of getting politically pilloried for not being seen to make the maximum effort on behalf of that cause.

This piece was originally published by The National Interest.

As noted in our recent Brookings Institution report, unmanned aerial vehicles (UAVs), commonly referred to as drones, are an emerging technology that requires the attention of local governments. Unfortunately, regulations governing their usage are significantly lagging the pace of innovation. Individual citizens who do not want these devices flying over (or even near) their property due to privacy or safety concerns have limited options. You can stay in your home and turn the music up until it goes away. Or you can go about your business and ignore the possibility that the drone has a camera to see inside your home. Others might prefer a more active response. In fact, there have been several recent instances where residents have taken it upon themselves to remove these drones from the skies…by force.

Misuses of drones

The usage of UAVs and the lack of a functional regulatory environment have not been without incident. Fire personnel in southern San Bernardino County were fighting the first major fire of the season and had to abort their tanker flights due to someone flying a drone at approximately 12,000 feet and interfering with the safety of the pilots. Just two weeks later, firefighters in Southern California were using several manned aircraft to help put out 20 car fires on an interstate highway that were caused when a wildfire jumped the highway unexpectedly.  Pilots had to ground the planes when it was reported that five drones were flying around the area to get a good look at the fires (two of which were witnessed actually chasing the tanker planes!).

In addition to the general lack of common sense by a few users interfering with life-saving aircraft around the U.S., Britain, Poland, and elsewhere, there have been an increasing number of incidents involving drones accused of serving as remote “peeping toms.” UAVs have also crashed into cars and homes; they have even been used to smuggle drugs across the U.S.-Mexico border in addition to smuggling marijuana into prisons in South Carolina and in Ohio.

Uneven regulations

When it comes to regulations around drones, we are living in the proverbial wild-west. A few states, like Nevada and Wisconsin, have passed legislation to prevent the weaponization of drones. But in July, a YouTube video went viral of a teenager in Connecticut who modified his drone to fire a semi-automatic handgun successfully. When confronted by law enforcement officials, they determined that no laws had actually been broken. Virginia was the first state legislature to put in place a two-year moratorium on drone usage by state or law enforcement agencies. That moratorium expired July 1^st. By the end of 2014, 36 states had introduced legislation aimed at protecting individual privacy in some manner. Only four of those passed last year. Currently, there are 17 states with some form of drone regulation on their books, and several other states still have legislation pending. Most of the laws that have passed, such as those in Idaho and Florida, focus on limiting police usage of drones by requiring probable cause warrants.

Nevada has been one of the more active states in the drone legislation arena. In addition to their legislation prohibiting the weaponization of civilian drones, the state also has passed legislation to provide homeowners rights to sue drone owners who fly their drones over personal property in certain circumstances. Furthermore, Nevada now requires law enforcement agencies to get warrants when using drones near any home “where there is an expectation of privacy.”

Potential benefits and rulemaking challenges

We do acknowledge and are excited about the positive benefits that drone technology is poised to provide. Amazon has been testing their commercial “Prime Air” package delivery system under an experimental testing agreement with the FAA since early 2015, which will likely impact the nature of their almost two year old partnership with the U.S. Postal Service. Drone startup company Flirtey successfully demonstrated their ability to deliver medicine to a rural medical facility in Virginia as part of their proof of concept efforts this July. Drones may even represent the future of pizza delivery.

The challenge this rapidly developing technology is creating is well ahead of local government efforts to rein in excessive activities. State and local governments need to engage on this policy issue more proactively. To do so, however, requires a delicate balancing act of the multiple competing interests of legitimate commercial uses, policing, public safety, privacy, and private property concerns. And this balancing has to take place in an environment where federal law remains unsettled too.

One thing we would definitely caution against is ‘regulation by default.’ To date, the efforts to regulate drone policy has focused on the drones themselves. As is commonly the case with new technology, governments typically engaged with a heavy hand that sometimes misses the opportunities afforded by the new technologies to improve city services and quality of life. Examples of this possible overreaction is Iowa City, Iowa and Charlottesville, Virginia, both of which were early adopters of complete bans on all surveillance drones within city limits back in 2013.

Local governments need to accept that drone technology is here for the near future. They must recognize that technology is not the problem, but how it is used can be a potential problem. Given the potential drawbacks and benefits, there is justification for reasoned regulation of drone technology.

Editors’ Note: Organized crime actors have increasingly adopted advanced technologies, with law enforcement agencies adapting accordingly. However, the use of ever fancier-technology is only a part of the story. The future lies as much behind as ahead, writes Vanda Felbab-Brown, with criminal groups now using primitive technologies and methods to counter the advanced technologies used by law enforcement. This post was originally published by the Remote Control Project, a project hosted by the Oxford Research Group.

The history of drug trafficking and crime more broadly is a history of adaptation on the part of criminal groups in response to advances in methods and technology on the part of law enforcement agencies, and vice versa. Sometimes, technology trumps crime: The spread of anti-theft devices in cars radically reduced car theft. The adoption of citadels (essentially saferooms) aboard ships, combined with intense naval patrolling, radically reduced the incidence of piracy off Somalia. Often, however, certainly in the case of many transactional crimes such as drug trafficking, law enforcement efforts have tended to weed out the least competent traffickers, and to leave behind the toughest, meanest, leanest, and most adaptable organized crime groups. Increasingly, organized crime actors have adopted advanced technologies, such as semi-submersible and fully-submersible vehicles to carry drugs and other contraband, and cybercrime and virtual currencies for money-laundering. Adaptations in the technology of smuggling by criminal groups in turn lead to further evolution and improvement of methods by law enforcement agencies. However, the use of ever fancier-technology is only a part of the story. The future lies as much behind as ahead (to paraphrase J.P. Wodehouse), with the asymmetric use of primitive technologies and methods by criminal groups to counter the advanced technologies used by law enforcement.

The seduction of SIGINT and HVT

The improvements in signal intelligence (SIGINT) and big-data mining over the past two decades have dramatically increased tactical intelligence flows to law enforcement agencies and military actors, creating a more transparent anti-crime, anti-terrorism, and counterinsurgency battlefield than before. The bonanza of communications intercepts of targeted criminals and militants that SIGINT has come to provide over the past decades in Colombia, Mexico, Iraq, Pakistan, Afghanistan, and other parts of the world has also strongly privileged high-value targeting (HVT) and decapitation policies-i.e., principally targeting the presumed leaders of criminal and militant organizations.

The proliferation of SIGINT and advances in big-data trawling, combined with some highly visible successes of HVT, has come with significant downsides. First, high-value targeting has proven effective only under certain circumstances. In many contexts, such as in Mexico, HVT has been counterproductive, fragmenting criminal groups without reducing their proclivity to violence; in fact, exacerbating violence in the market. Other interdiction patterns and postures, such as middle-level targeting and focused-deterrence, would be more effective policy choices. 

A large part of the problem is that the seductive bonanza of signal intelligence has lead to counterproductive discounting of the need to:

1. develop a strategic understanding of criminal groups’ decisionmaking—knowledge crucial for anticipating the responses of targeted non-state actors to law enforcement actions; Mexico provides a disturbing example;
2. cultivate intelligence human intelligence assets, sorely lacking in Somalia, for example;
3. obtain a broad and comprehensive understanding of the motivations and interests of local populations that interact with criminal and insurgent groups, notably deficient in Iraq, Afghanistan, and Pakistan; and 
4. establish good relationships with local populations to advance anti-crime and counterinsurgency policies, such as in Colombia where drug eradication policy antagonized local populations from national government and strengthened the bonds between them and rebel groups. 

In other words, the tactical tool, technology—in the form of signal intelligence and big-data mining—has trumped strategic analysis. The correction needed is to bring back strategic intelligence analysis to drive interdiction targeting patterns, instead of letting the seduction of signal data drive intelligence analysis and targeting action. The political effects, anticipated responses by criminal and militant groups, and other outcomes of targeting patterns need be incorporated into the strategic analysis. Questions to be assessed need to include: Can interdiction hope to incapacitate—arrest and kill—all of the enemy or should it seek to shape the enemy? What kind of criminals and militants, such as how fractured or unified, how radicalized or restrained in their ambitions, and how closely aligned with local populations against the state, does interdiction want to produce? 

Dogs fights or drone fights: Remote lethal action by criminals

Criminal groups have used technology not merely to foil law enforcement actions, but also to fight each other and dominate the criminal markets and control local populations. In response to the so-called Pacification (UPP) policy in Rio de Janeiro through which the Rio government has sought to wrestle control over slums from violent criminal gangs, the Comando Vermelho (one of such gangs), for example, claimed to deploy remote-sensor cameras in the Complexo do Alemão slum to identify police collaborators, defined as those who went into newly-established police stations. Whether this specific threat was credible or not, the UPP police units have struggled to establish a good working relationship with the locals in Alemão.

The new radical remote-warfare development on the horizon is for criminal groups to start using drones and other remote platforms not merely to smuggle and distribute contraband, as they are starting to do already, but to deliver lethal action against their enemies—whether government officials, law enforcement forces, or rival crime groups. Eventually, both law enforcement and rival groups will develop defenses against such remote lethal action, perhaps also employing remote platforms: drones to attack the drones. Even so, the proliferation of lethal remote warfare capabilities among criminal groups will undermine deterrence, including deterrence among criminal groups themselves over the division of the criminal market and its turfs. Remotely delivered hits will complicate the attribution problem— i.e., who authorized the lethal action—and hence the certainty of sufficiently painful retaliation against the source and thus a stable equilibrium. More than before, criminal groups will be tempted to instigate wars over the criminal market with the hope that they will emerge as the most powerful criminal actors and able to exercise even greater power over the criminal market—the way the Sinaloa Cartel has attempted to do in Mexico even without the use of fancy technology. Stabilizing a highly violent and contested—dysfunctional—criminal market will become all the more difficult the more remote lethal platforms have proliferated among criminal groups.

Back to the past: The Ewoks of crime and anti-crime

In addition to adopting ever-advancing technologies, criminal and militant groups also adapt to the technological superiority of law enforcement-military actors by the very opposite tactic—resorting asymmetrically to highly primitive deception and smuggling measures. Thus, both militant and criminal groups have adapted to signal intelligence not just by using better encryption, but also by not using cell phones and electronic communications at all, relying on personal couriers, for example, or by flooding the e-waves with a lot of white noise. Similarly, in addition to loading drugs on drones, airplanes, and submersibles, drug trafficking groups are going back to very old-methods such as smuggling by boats, including through the Gulf of Mexico, by human couriers, or through tunnels. 

Conversely, society sometimes adapts to the presence of criminal groups and intense, particularly highly violent, criminality by adopting its own back-to-the-past response—i.e., by standing up militias (which in a developed state should have been supplanted by state law enforcement forces). The rise of anti-crime militias in Mexico, in places such as Michoacán and Guerrero, provides a vivid and rich example of such populist responses and the profound collapse of official law enforcement. The inability of law enforcement there to stop violent criminality—and in fact, the inadvertent exacerbation of violence by criminal groups as a result of HVT—and the distrust of citizens toward highly corrupt law enforcement agencies and state administrations led to the emergence of citizens’ anti-crime militias. The militias originally sought to fight extortion, robberies, theft, kidnapping, and homicides by criminal groups and provide public safety to communities. Rapidly, however, most of the militias resorted to the very same criminal behavior they purported to fight—including extortion, kidnapping, robberies, and homicides. The militias were also appropriated by criminal groups themselves: the criminal groups stood up their own militias claiming to fight crime, where in fact, they were merely fighting the rival criminals. Just as when external or internal military forces resort to using extralegal militias, citizens’ militias fundamentally weaken the rule of law and the authority and legitimacy of the state. They may be the ewoks’ response to the crime empire, but they represent a dangerous and slippery slope to greater breakdown of order.

In short, technology, including remote warfare, and innovations in smuggling and enforcement methods are malleable and can be appropriated by both criminal and militant groups as well as law enforcement actors. Often, however, such adoption and adaptation produces outcomes that neither criminal groups nor law enforcement actors have anticipated and can fully control. The criminal landscape and military battlefields will resemble the Star Wars moon of Endor: drone and remote platforms battling it out with sticks, stones, and ropes.