It’s Abuse, Not Use, of Drones that Concerns Us

By Claire Guthrie Gastañaga, Executive Director

Coming late into the legislative game is the Virginia Technology Alliance for Public Safety (VATAPS), a group funded by and representing the interests of the unmanned aerial systems industry in the name of economic development and public safety.  Their mission is to persuade Governor Bob McDonnell to veto a two-year moratorium on the use of drones in the Commonwealth, which just passed the legislature with overwhelming bipartisan support.  And they’re using the key word that gets every Virginia politician’s attention…”jobs.”

Where were these advocates of unmanned aerial vehicles (UAVs), or drones, in the months leading up to and during the General Assembly session?  Why didn’t they accept our invitation to bring law enforcement to the table to discuss reasonable regulations of drone use in criminal and regulatory enforcement?

The ACLU of Virginia announced in July 2012 that it was working with Del. C. Todd Gilbert to develop common sense rules limiting the use of this new and intrusive technology by government law enforcement and regulatory agencies. We published the principles that would guide development of such legislation over the summer and invited representatives from across the spectrum – law enforcement, tea party libertarians, progressives, business associations, privacy advocates, and drone manufacturers – to participate in the conversation.  Members of the drone industry and law enforcement refused to engage in a dialogue saying no regulation of drones is needed beyond the minimal protections provided by the constitution. So in the end, standing by our side at a press conference presenting the legislation patroned by Del. Gilbert and Sen. Donald McEachin were the Virginia Tea Party Patriots Federation, the Virginia Campaign for Liberty, the Virginia Agribusiness Council, the Virginia Farm Bureau, and the Virginia Poultry Federation.  Clearly, we’re not the only ones who see a need for responsible regulation and public oversight of the use of drones by government.

As the legislative session progressed, it became clear that Virginia needed more time to consider and adopt reasonable and responsible regulations governing the use of drones by law enforcement and regulatory agencies.  Thus, legislators passed a two-year moratorium, authored by Del. Ben Cline, instead of the more detailed and comprenhensive legislation we circulated over the summer and fall.  The moratorium prohibits only law enforcement and regulatory agency use of drones, bans weaponized drones, does not limit private development or testing of UAVs, and has exceptions to address public safety concerns and National Guard preparedness.  Moreover, the two-year term expires prior to when the Federal Aviation Administration is expected to open the skies to drone use by law enforcement and any other non-military groups.  Currently, use of drones is limited to very restricted air space.

At the heart of one of VATAPS’s arguments is that the FAA has announced plans to designate six testing sites for the development of drones.  While Virginia is vying to be one of those sites, the industry-funded group argues that the moratorium, if signed, threatens the state’s chances of selection.  They say that the moratorium threatens the opportunity to add jobs and grow the Commonwealth’s economy, an expected byproduct of being designated a testing site.  In light of the sequester, however, the timing of the FAA designation of future test sites and the very development of the sites themselves is speculative, at best.

Our aim is not to hinder economic development and job growth that comes from drone manufacturing or testing, and we don’t seek to prohibit all government use of the technology.  Instead, we advocate for the judicious and responsible use of it.  We want to be sure the public is engaged in the procurement of drones and has a say in whether, and how, localities or the state use UAVs.  We also want to protect our privacy and First Amendment rights by requiring law enforcement to obtain a warrant before beginning surveillance efforts.  In addition, we advocate for image retention restrictions and policies regarding auditing and effectiveness tracking.  In short, we are looking to adopt reasonable, commonsense limits that prevent government misuse and abuse of drone technology when trying to balance the benefits of this new equipment with the threat it poses to our constitutional liberties.

At the end of the day, Virginia citizens want and expect our Governor to be protective of our privacy and our safety. At this juncture, the Governor has a choice. He can lead the development of responsible rules by bringing the parties together even between now and March 25th when he must sign, veto or propose amendments to the moratorium legislation.  If the Governor signs the moratorium legislation, as he should, he will be saying that he wants to be sure that Virginia has the time to develop reasonable and responsible regulations governing drone use, and he will be giving the members of this industry-sponsored group reasons to come to the table to discuss those rules.  If the Governor refuses to sign the moratorium bill, he will be saying that he values the interests of those with a financial interest in the development of the commercial market for drones over the privacy interests and constitutional rights of Virginians.