georgetownlawcenterTomorrow at 12 noon at the Georgetown University Law Center I will be presenting my Brookings paper “Drones and Aerial Surveillance: Considerations for Legislators.” Professor Julie Cohen will be providing commentary. The paper can be downloaded here:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2523041

 

 

 

Here is the abstract:

The looming prospect of expanded use of unmanned aerial vehicles, colloquially known as drones, has raised understandable concerns for lawmakers. Those concerns have led some to call for legislation mandating that nearly all uses of drones be prohibited unless the government has first obtained a warrant. Privacy advocates have mounted a lobbying campaign that has succeeded in convincing thirteen states to enact laws regulating the use of drones by law enforcement, with eleven of those thirteen states requiring a warrant before the government may use a drone.

The campaigns mounted by privacy advocates oftentimes make a compelling case about the threat of pervasive surveillance, but the legislation is rarely tailored in such a way to prevent the harm that advocates fear. In fact, in every state where legislation was passed, the new laws are focused on the technology (drones) not the harm (pervasive surveillance). In many cases, this technology- centric approach creates perverse results, allowing the use of extremely sophisticated pervasive surveillance technologies from manned aircraft, while disallowing benign uses of drones for mundane tasks like accident and crime scene documentation, or monitoring of industrial pollution and other environmental harms. Legislators should reject a warrant-based, technology-centric approach as it is unworkable and counterproductive. Instead, legislators should follow a property rights-centric approach, coupled with limits on persistent surveillance, data retention procedures, transparency and accountability measures and a recognition of the possibility that technology may make unmanned aerial surveillance more protective of privacy than manned surveillance. 

This paper makes five core recommendations:
1. Legislators should follow a property-rights approach to aerial surveillance. This approach provides landowners with the right to exclude aircraft, persons, and other objects from a column of airspace extending from the surface of their land up to 350 feet above ground level. Such an approach may solve most public and private harms associated with drones.
2. Legislators should craft simple, duration-based surveillance legislation that will limit the aggregate amount of time the government may surveil a specific individual. Such legislation can address the potential harm of persistent surveillance, a harm that is capable of being committed by manned and unmanned aircraft.
3. Legislators should adopt data retention procedures that require heightened levels of suspicion and increased procedural protections for accessing stored data gathered by aerial surveillance. After a legislatively determined period of time, all stored data should be deleted.
4. Legislators should enact transparency and accountability measures, requiring government agencies to publish on a regular basis information about the use of aerial surveillance devices (both manned and unmanned).
5. Legislators should recognize that technology such as geofencing and auto-redaction, may make aerial surveillance by drones more protective of privacy than human surveillance.

DronesandPrivacy

 

On Wednesday October 29th, I will be debating Michael Toscano, the President and CEO of the Association of Unmanned Vehicle Systems International.  The event will be held at Chapman University School of Law.  The presentation will be based in part on my paper “Domestic Drones and the Future of Aerial Surveillance.”  

I’ve included the event flier below:

Drones, Privacy, Efficiency and the Future of Aerial Surveillance

Drones, Privacy, Efficiency and the Future of Aerial Surveillance

 

On Monday October 26th at 5:00pm I will be presenting my paper “War Against Transnational Organized Crime?” at the Pacific McGeorge School of Law.  Below is the paper’s abstract:

Here is the introduction from the paper:

Cartels, Traffickers and Transnational Organized CrimeOver the past decade, the U.S. military has used surveillance and reconnaissance capabilities in support of lethal actions directed against organized criminals. The public record reveals the U.S. military was involved in the killing of high value “narco-terrorists.” The U.S. Air Force supported the shoot-down or force-down of aircraft involved in illicit trafficking, resulting in seven aircraft seized or destroyed, and eight pilots dead on arrival, arrested, or missing. The Department of Defense has expanded their traditional focus from targeting terrorist groups and narcotics traffickers toward combating the national security threats posed by transnational criminal organizations. The shift in focus has meant that the Department of Defense is now providing support ranging from partnering with other U.S. government agencies, to assisting foreign militaries, building institutions and even engaging in direct military action against terrorists or insurgent groups that also engage in crime.

Inside government, officials are struggling to find ways that DoD can support law enforcement agencies while still complying with limits placed by defense appropriations — which oftentimes only allow for the use of funds to support law enforcement activity against drug traffickers or drug traffickers where there is a clear counterterrorism nexus. This counterterrorism-counternarcotics nexus limitation is a significant one as it has prevented DoD from supporting other government agencies in their fight against traffickers whose operations may end up supporting terrorism, but whose connection to narcotics trafficking is weak or not provable. While this limitation has in some instances prevented DoD from supporting other government agencies, it is also believed that in some instances, agencies are loosely interpreting the counternarcotics-counterterrorism nexus to make an end run around the law.

As the Department of Defense begins to shift focus to countering transnational criminal organizations, a few significant issues become immediately important. Is the trend towards militarization a positive development? Might such a trend displace more effective “non-kinetic” means of dealing with law enforcement problems? Is it possible that the trend towards militarization will increase violence as TCOs see themselves pitted in an arms race against well armed enforcers? Might the trend towards militarization challenge international law and threaten human rights. Specifically may we see sovereignty violated through abductions or lethal action against suspected TOCs? Might military readiness suffer as armed forces trained and equipped for combat, shift to law enforcement type missions. What resource constraints might be raised by such a development? Is this an appropriate use of resources? What will the impact be on readiness for major combat operations? Does a shift toward militarized law enforcement (or the military engaged in law enforcement) undermine traditional approaches to policing? Will line drawing become increasingly difficult? Will such a shift even work? If it does work, what costs might be associated with success? How will success be measured? This paper addresses each of these questions in turn, and suggests a path forward for future actions to counter transnational organized crime.

 

UC Davis Law LogoTomorrow at UC Davis School of Law, I will be presenting my paper “Domestic Drones and the Future of Aerial Surveillance.”  The event will begin at 12 noon and Professor Elizabeth Joh will be providing commentary.  The event is open to the public, however the hosts are requesting pre-registration here.

Here is an excerpt from the paper abstract:

The use of drones systems raises serious questions about modern conceptions of privacy. This article examines the constitutional doctrine related to aerial surveillance and technology, and finds that current doctrine is unlikely to prevent the use of unmanned systems. The article proposes a series of legislative solutions intended to place surveillance by drones on the same legal footing as surveillance by manned aircraft — a status quo solution. The paper then analyzes the circumstances under which that new status quo may break down, and proposes remedies that could be implemented depending upon the nature of the emergent privacy harms.

 

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On Wednesday October 8th I will be presenting part of my paper “War Against Transnational Organized Crime?” at Southern Methodist University’s Dedman School of Law, Faculty Forum.

The SMU Law Faculty Forum is an ongoing series of presentations of works-in-progress by scholars from SMU Dedman School of Law and from law schools around the country and the world. The Faculty Forum provides an opportunity for new ideas to be explored through informal discussion between the presenter and SMU faculty. As part of its commitment to scholarship, SMU Dedman School of Law sponsors these forum presentations throughout the academic year.

Here is the introduction from the paper:

Over the past decade, the U.S. military has used surveillance and reconnaissance capabilities in support of lethal actions directed against organized criminals. The public record reveals the U.S. military was involved in the killing of high value “narco-terrorists.” The U.S. Air Force supported the shoot-down or force-down of aircraft involved in illicit trafficking, resulting in seven aircraft seized or destroyed, and eight pilots dead on arrival, arrested, or missing. The Department of Defense has expanded their traditional focus from targeting terrorist groups and narcotics traffickers toward combating the national security threats posed by transnational criminal organizations. The shift in focus has meant that the Department of Defense is now providing support ranging from partnering with other U.S. government agencies, to assisting foreign militaries, building institutions and even engaging in direct military action against terrorists or insurgent groups that also engage in crime. 
Inside government, officials are struggling to find ways that DoD can support law enforcement agencies while still complying with limits placed by defense appropriations — which oftentimes only allow for the use of funds to support law enforcement activity against drug traffickers or drug traffickers where there is a clear counterterrorism nexus. This counterterrorism-counternarcotics nexus limitation is a significant one as it has prevented DoD from supporting other government agencies in their fight against traffickers whose operations may end up supporting terrorism, but whose connection to narcotics trafficking is weak or not provable. While this limitation has in some instances prevented DoD from supporting other government agencies, it is also believed that in some instances, agencies are loosely interpreting the counternarcotics-counterterrorism nexus to make an end run around the law.

As the Department of Defense begins to shift focus to countering transnational criminal organizations, a few significant issues become immediately important. Is the trend towards militarization a positive development? Might such a trend displace more effective “non-kinetic” means of dealing with law enforcement problems? Is it possible that the trend towards militarization will increase violence as TCOs see themselves pitted in an arms race against well armed enforcers? Might the trend towards militarization challenge international law and threaten human rights. Specifically may we see sovereignty violated through abductions or lethal action against suspected TOCs? Might military readiness suffer as armed forces trained and equipped for combat, shift to law enforcement type missions. What resource constraints might be raised by such a development? Is this an appropriate use of resources? What will the impact be on readiness for major combat operations? Does a shift toward militarized law enforcement (or the military engaged in law enforcement) undermine traditional approaches to policing? Will line drawing become increasingly difficult? Will such a shift even work? If it does work, what costs might be associated with success? How will success be measured? This paper addresses each of these questions in turn, and suggests a path forward for future actions to counter transnational organized crime.

Militarizing the Fight Against Transnational Organized Crime with Professor Gregory McNeal

Militarizing the Fight Against Transnational Organized Crime with Professor Gregory McNeal

On October 1, 2014 I will be presenting at the New York University School of Law’s Hauser Colloquium.  My paper is entitled “War Against Transnational Organized Crime?”  From the introduction:

Over the past decade, the U.S. military has used surveillance and reconnaissance capabilities in support of lethal actions directed against organized criminals. The public record reveals the U.S. military was involved in the killing of high value “narco-terrorists.” The U.S. Air Force supported the shoot-down or force-down of aircraft involved in illicit trafficking, resulting in seven aircraft seized or destroyed, and eight pilots dead on arrival, arrested, or missing. The Department of Defense has expanded their traditional focus from targeting terrorist groups and narcotics traffickers toward combating the national security threats posed by transnational criminal organizations. The shift in focus has meant that the Department of Defense is now providing support ranging from partnering with other U.S. government agencies, to assisting foreign militaries, building institutions and even engaging in direct military action against terrorists or insurgent groups that also engage in crime.

Inside government, officials are struggling to find ways that DoD can support law enforcement agencies while still complying with limits placed by defense appropriations — which oftentimes only allow for the use of funds to support law enforcement activity against drug traffickers or drug traffickers where there is a clear counterterrorism nexus. This counterterrorism-counternarcotics nexus limitation is a significant one as it has prevented DoD from supporting other government agencies in their fight against traffickers whose operations may end up supporting terrorism, but whose connection to narcotics trafficking is weak or not provable. While this limitation has in some instances prevented DoD from supporting other government agencies, it is also believed that in some instances, agencies are loosely interpreting the counternarcotics-counterterrorism nexus to make an end run around the law.

As the Department of Defense begins to shift focus to countering transnational criminal organizations, a few significant issues become immediately important.  Is the trend towards militarization a positive development? Might such a trend displace more effective “non-kinetic” means of dealing with law enforcement problems?  Is it possible that the trend towards militarization will increase violence as TCOs see themselves pitted in an arms race against well armed enforcers?  Might the trend towards militarization challenge international law and threaten human rights. Specifically may we see sovereignty violated through abductions or lethal action against suspected TOCs?  Might military readiness suffer as armed forces trained and equipped for combat, shift to law enforcement type missions. What resource constraints might be raised by such a development? Is this an appropriate use of resources? What will the impact be on readiness for major combat operations?  Does a shift toward militarized law enforcement (or the military engaged in law enforcement) undermine traditional approaches to policing? Will line drawing become increasingly difficult? Will such a shift even work? If it does work, what costs might be associated with success? How will success be measured?

 

On Tuesday September 30, 2014 I will be participating in an event “Drone Warfare and Constitutional Accountability” at Columbia Law School.  In the event I will be presenting excerpts from my paper “Targeted Killing and Accountability.”

Drone Warfare and Accountability with drone expert Professor Gregory McNeal

 

On Monday, September 29, 2014 I’ll be discussing the role of the lawyer in advising start-up companies and explaining how regulation impacts innovation.  The presentation is entitled “Uber and Driverless Cars- Innovation vs. Regulation.”

Regulation versus Innovation featuring Professor Gregory McNeal

Regulation versus Innovation featuring Professor Gregory McNeal

Regulation Versus Innovation Gregory McNeal

 

 

 

“Domestic Drones: FAA Regulations, Privacy, Property, Tort and Other Emergent Issues” sponsored by the Minnesota Lawyers Chapter of the Federalist Society.

Domestic Drones: FAA Regulations, Privacy, Property, Tort and Other Emergent Issues featuring Professor Gregory S. McNeal

Domestic Drones: FAA Regulations, Privacy, Property, Tort and Other Emergent Issues featuring Professor Gregory S. McNeal

 

 

Screen Shot 2014-10-10 at 2.13.38 PM“Surveillance Drones On The Homefront – Privacy At Risk?” a discussion at the University of Minnesota School of Law featuring drone expert, Professor Gregory S. McNeal.

 

Surveillance Drones On The Homefront - Privacy At Risk? featuring drone expert Professor Gregory S. McNeal

Surveillance Drones On The Homefront – Privacy At Risk? featuring drone expert Professor Gregory S. McNeal

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