Border Patrol drones have shown up at the LA protests. Should we be worried?
Officially, these drones, which CBP has used since 2005, are supposed to be for border security. CBP states that they are 'a critical element of CBP missions to predict, detect, identify, classify, track, deter and interdict border traffic that threatens the continuity of U.S. border security.'
That may be true, but the drones are used for quite a bit more than that. CBP frequently lends them to other federal, state and local law enforcement agencies across the country, in some cases for uses that raise questions about civil liberties.
Los Angeles is far from the first place where drones have been used to surveil protests and civil unrest. In the three weeks after George Floyd was killed by police in 2020, CBP lent drones to law enforcement agencies in 15 cities.
In 2016, indigenous and environmentalist activists protested the construction of the Dakota Access Pipeline, which they argued violated the rights and sovereignty of the Standing Rock Sioux. The local sheriff requested CBP drones to help surveil these protesters, which CBP subsequently provided.
Surveillance of anti-pipeline activists with CBP drones didn't stop there. In 2020, Enbridge, Inc. was planning to build a pipeline and faced similar controversy and protests. CBP flew drones over its planned pipeline route and over the homes of anti-pipeline activists, including the executive director of the Indigenous Environmental Network.
Surveilling protesters is a concerning use of drones, as it may chill or repress speech, association and assembly protected by the First Amendment. In 2015, CBP claimed it had not used drones to surveil protests or other First Amendment activities. Yet with multiple high-profile reports to the contrary in the years that followed, that appears to have changed.
CBP drones are also often lent to different law enforcement agencies for other activities. In 2012, the Electronic Frontier Foundation, a nonprofit that advocates digital freedom and civil liberties, sued the Department of Homeland Security under the Freedom of Information Act to learn how often CBP lent drones to other agencies and why.
Initially, Homeland Security sent the Electronic Frontier Foundation incomplete records that failed to mention around 200 drone flights carried out on behalf of other agencies. But by 2014, the foundation learned that CBP had lent drones to other agencies 687 times in the period from 2010 to 2012.
This included flights on behalf of many law enforcement agencies, 'ranging from the FBI, ICE, the U.S. Marshals, and the Coast Guard to the Minnesota Bureau of Criminal Investigation, the North Dakota Bureau of Criminal Investigation, the North Dakota Army National Guard, and the Texas Department of Public Safety.'
In 2018, David Bier and Matthew Feeney of the Cato Institute published an analysis of CBP's drone program. They noted that 'From 2013 to 2016, only about half of CBP drone flight hours were actually in support of Border Patrol.' They also cite CBP statements 'that 20 percent of all Predator B flights were not in coastal or border areas.'
When legislators approved this drone program, their goal was to secure the border. But these days, CBP drones are being used in ways that have significant potential to undermine the privacy of Americans, and not just in areas along the border.
Multiple federal court rulings have allowed the government to conduct aerial surveillance without a warrant. No court order or even suspicion of a crime is required. Law-abiding citizens far from the border are therefore vulnerable.
When governments acquire new tools, they don't just use them for their original purpose. Government officials, like all people, are creative. This results in 'mission creep' as powers quickly expand and are put to new uses.
That means the rest of us should ask a simple question: How would you feel if this power were used against you?
Nathan Goodman is a senior research fellow with the Mercatus Center at George Mason University's F.A. Hayek Program.
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