Regulating Drones to Protect Human Rights

In an earlier blog, I discussed the potential as well as the danger of the expansion of drone use around the world, and in particular in Latin America. While that discussion focused mainly on armed drones, a drone need not be armed in order to pose a serious threat to human rights. Lack of adequate civilian control or transparency over law enforcement surveillance programs, combined with such an inexpensive and highly effective surveillance tool, creates an environment propitious to violations of privacy rights, due process in criminal investigations, and the right to freedom of speech and assembly.

In a November 2013 public hearing on the issue of drones in America, regional activists informed the Inter-American Commission on Human Rights (IACHR) that currently 15 States in the hemisphere have drones. The majority of these States intend to use drones to collect intelligence and monitor borders, although Brazil and Mexico also plan to use them to monitor large protests and even celebrations. Colombia will employ drones in its war with the FARC, and Peru has already employed drones to monitor areas where Shining Path (Sendero Luminoso) members are located.

However, despite this proliferation, those same activists also alerted the IACHR to a generalized lack of legislation regarding drone usage in the hemisphere. Only Brazil, Canada, and the United States have adopted basic legislation, but such legislation focuses mainly on civilian use of drone usage: issues of airspace control, commercial uses, safety, and liability for injury to third parties. Significantly, discussions of drone use by military and police are almost entirely absent.

This lack of regulations regarding law enforcement drone surveillance is particularly concerning if one considers the history of Latin American police and military abuse. Even today, civilian control of armed forces is precarious in various countries. The lack of accountability that accompanies traditional military and police activities is likely to be exacerbated by the inexpensive and low-risk, yet incredibly powerful surveillance that can even be executed invisibly that drones provide.

While it may be argued that Peru or Colombia’s deployment of drones against the Shining Path or FARC does not require civilian oversight, when it comes to violations of human rights, military and police forces in the region have a history of blurring the line between legitimate threats to national security and those who express ideological differences or pose political threats or to those in power.

During the IACHR meeting, Jay Stanley of the American Civil Liberties Union warned that without adequate regulation and oversight, drone surveillance could cause wide-scale violations of human rights, including dragnet surveillance via Wide Area Surveillance technology. This is not a mere conspiracy theory plagiarized from a dystopian novel. Currently, it is impossible to know with certainty which States are undertaking what surveillance activities, not in the least due to the lack of transparency regarding drone programs. For example, in 2013, Mexico refused to answer a request for information under that country’s version of the Freedom of Information Act regarding the amount of drones in the country and their uses.

Regardless of what we do not know about State drone surveillance activities, recent events in various States make it clear that regulation is needed. In 2012, Brazilian Special Forces tested the use of drones to combat drug gangs in the slums surrounding Rio, in order to improve security prior to the 2014 World Cup and 2016 Olympics. Later, in early 2013, Brazil announced that it had purchased two Israeli drones that it planned to use for that purpose, although it later abandoned the plan. 

Additionally, In June 2013, the newspaper Folha de Sao Paulo used drones to report on protests regarding public transportation in San Paulo. In September 2013, Grupo Reforma in Mexico hired Drones Skycam to use drones to cover protests in Mexico City.  Both of these events sparked discussion regarding the potential use of drones by police or military forces to not only report on protests, but obtain surveillance on protesters and organizers, thus effectively threatening the exercise of the right to free speech and assembly in the region. While the events above were undertaken by newspapers, in some States in the region media is State-owned (literally and figuratively), which may have nefarious effects: in El Salvador, political minorities are concerned that biased news organizations could use drones to spy on political opponents.

There are several ways Latin American States can reduce the risk of human rights violations posed by drones. Some jurisdictions in the United States have called for wholesale bans on law enforcement drone surveillance. Illinois became one of the first states in the USA to pass legislation regarding law enforcement drone surveillance, which addresses when drones may be deployed, how data obtained is handled, and who has access. The Illinois law prohibits law enforcement agencies from using drones to obtain information, and delineates several exceptions to this prohibition, including the presence of a warrant, accident scene surveillance, when necessary to prevent imminent loss of life, and to prevent an imminent terrorist attack (the latter two exceptions are narrowly defined). While not perfect, it is a good start for jurisdictions with no regulations In any event, the most effective method of avoiding human rights abuses is by ensuring transparency, accountability, and civilian oversight of drone surveillance programs.