Steve C. Posner on the Privacy Implications of Domestic Unmanned Aerial Border Surveillance Pursuant to § 5102 of the Intelligence Reform and Terrorism Prevention Act, 8 U.S.C. §§ 1701 note and 1712 note.
By Steve Posner
Live near the border? Predators are watching. In 2005, under new congressional authorization, 1 the U.S. government started flying Predator B drones over the Mexican border. While not the first program to conduct remote video surveillance of U.S. borders, 2 previous systems were used mainly to track the movements of illegal immigrants who had already been spotted by other means. 3 The Predator B represents a quantum leap in surveillance capability. According to the Liberty & Security Journal of Oct. 8, 2010, "The drone operates 16 hours a day, and its video and infrared cameras can reportedly see an object one foot long from four miles away, while its radar can detect footprints, vehicle tracks, and even quarter-inch cuts in the [Mexican] border's steel wall." According to a 2004 Congressional Research Service report, a Predator B can operate for up to 30 hours and can identify an object the size of a milk carton from an altitude of 60,000 feet. 4 And according to the Canadian Standing Senate Committee on National Security and Defense, a U.S. Predator B operating on the U.S.-Canadian border "can take high definition and infrared video of anything within a 40-kilometre radius and has extra-sensitive radar." 5As of April 27, 2010, three Predator Bs were in use along the Mexican border. 6 Last summer, the program expanded to fly Predators along the Mexican and Canadian borders, and out of Miami, and further expansion is planned.
n1 Use of unmanned aerial border surveillance was authorized by the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. Law 108-458 § 5102 ("Border Surveillance Plan"), 118 Stat. 3733 (Dec. 17, 2004, codified at 8 U.S.C. §§ 1701 note and 1712 note. In 2006, Pub. Law 109-367 § 2(a)(1) ("Achieving Operational Control on the Border"), 120 Stat. 2638, called for "systematic surveillance of the international land and maritime borders of the United States through more effective use of personnel and technology, such as unmanned aerial vehicles, ground-based sensors, satellites, radar coverage, and cameras..."
n2 See, Department of Homeland Security ("DHS"), Office of Inspector General, "A Review of Remote Surveillance Technology Along U.S. Land Borders," (Dec. 2005), avail. at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_06-15_Dec05.pdf.n3 Id. at 15.n4 Christopher Bolkcom, "Homeland Security: Unmanned Aerial Vehicles and Border Surveillance," CRS Report to Congress, Order Code RS21698 (June 28, 2004).n5 "Proceedings of the Standing Senate Committee on National Security and Defense," Issue 8-Evidence (Jun. 22, 2009).
n6 See Testimony by Secretary Janet Napolitano, before the United States Senate Committee on the Judiciary, on Oversight of the Department of Homeland Security, available at http://www.dhs.gov/ynews/testimony/testimony_1272383936754.shtm.
About the Author: Steve C. Posner is the author of the annually updated legal treatise Privacy Law and The USA PATRIOT Act (LexisNexis/Matthew Bender 2011), emphasizing the practical implications, burdens and options for organizations and individuals cooperating with and subject to government evolving reporting requirements, information requests and surveillance.Mr. Posner frequently speaks on privacy and national security law to professional and community groups, as well as to undergraduate and graduate level university classes. He writes frequently online commentaries and blogs on emerging issues and litigation for LexisNexis.Mr. Posner is a former editor of the Technology Law and Policy Review column for The Colorado Lawyer magazine, and former co-chair of the Colorado Bar Association's Law Office Technology Committee. He is admitted to practice law in Colorado, New York and California, and is in private practice in Evergreen, Colorado.
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