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    What the FBI's Letter to Rand Paul Says About the Bureau's Domestic Drone Use

    Written by

    Grace Wyler


    Photo via eschipul/Flickr

    Ever since FBI Director Robert Mueller admitted to Congress last month that the agency does, in fact, use drones for "limited" domestic surveillance, we've wondered just how and when the Bureau has deployed these unmanned aerial vehicles.

    Last week, we finally got an answer. Or at least part of an answer.  

    After prodding by Kentucky's Republican Sen. Rand Paul, Senate's resident privacy gadfly, the FBI acknowledged that, since late 2006, the Bureau has used drones 10 times in domestic airspace, including twice for "national security cases" and eight times for criminal cases, and authorized the use of drones in three other criminal cases but never deployed them. The FBI also said that one those cases involved the rescue of a 5-year-old boy who was held hostage in an Alabama bunker this year, confirming earlier reports that a drone was used in that standoff. 

    "The FBI uses UAVs in very limited circumstances to conduct surveillance when there is a specific, operational need," Stephen Kelly, the FBI's assistant director of congressional affairs, wrote in a letter to Paul dated July 19. "UAVs have been used for surveillance to support missions related to kidnappings, search and rescue operations, drug interdictions, and fugitive investigations." 

    "None of the UAVs used by the FBI are armed with either lethal or non-lethal weapons, and the FBI has no plans to use weapons with UAVs," the letter continues. "The FBI does not use UAVs to conduct 'bulk' surveillance or to conduct general surveillance not related to an investigation or assessment." 

    Like most explanations of the government's drone policies, the letter raises more questions than it answers, namely: How many times did the FBI fly drones in each of these cases? For how long? What information was gathered from these drone flights? What kind of drones did its agents use, with what kind of cameras? And why were drones, rather than regular old manned aircraft, used in these cases?

    And while the FBI acknowledged the Alabama case, the agency declined to provide any details about the nine other cases where drones were used in domestic airspace, saying that the information is "Law Enforcement Sensitive," or classified "based on the need to protect the effectiveness of this capability in law enforcement and national security matters." 

    Presumably, some of these questions are answered in the classified addendum provided to Sen. Paul. But for now, the public still knows relatively little about how, why or when the FBI uses drones. 

    One thing we do know, however, is that the FBI doesn't need a warrant to use drones for domestic surveillance. According to Kelly's letter, the FBI has not asked for a warrant for any of its domestic drone surveillance operations so far. "To date, there has been no need for the FBI to seek a search warrant or judicial order in any of the few cases where UAVs have been used," Kelly writes, concluding that the individuals under surveillance have not had "a reasonable expectation of privacy under the Fourth Amendment." 

    In a follow-up letter sent to the FBI last week, Paul asked for more details on the agency's Fourth Amendment rules, noting his concern that their interpretation of "reasonable expectation of privacy" might be "overly broad." The FBI's response, published by Paul's office on Monday, explained that because the areas observed by the drones were in public view, and because there was no physical trespass, the Bureau concluded that there has not been a reasonable expectation of privacy in any of the instances where drones have been used, making warrants unnecessary. 

    For now, the FBI's explanation appears to have satisfied Congress. In a statement Monday, Paul announced that while he disagrees with the agency's interpretation, he would nevertheless drop his hold on the pending nomination of James B. Comey, Jr., for FBI director. Minutes later, the Senate confirmed Comey 93-1, with Paul as the single "no" vote. 

    Still, Comey's confirmation is hardly the last word on the FBI's domestic drone surveillance. As law enforcement agencies use drones for wider purposes, the use of unmanned aircraft for domestic surveillance will continue to raise unresolved questions about privacy and civil liberties. If anything, the FBI's recent explanations have just drew darker lines around the gray legal shadows surrounding the use of drones.