On the Front Lines of the Home Front: The Intersection of Domestic Counterterrorism Operations and Drone Legislation

Abstract

Imagine that the United States (U.S.) has again been attacked by terrorists and this time, the government’s counterterrorism (CT) response will include the use of drones. How would proposed state and federal drone legislation and policies impact the government’s ability to employ drones in the conduct of such domestic CT operations?

For some, the term “drone” conjures up images of illicit government surveillance – or worse yet, the extrajudicial killing – of Americans on U.S. soil. To allay these fears, a significant amount of state and federal legislation has been proposed that forbids the government from collecting information or evidence with a drone, with limited exceptions including, but not limited to “imminent danger to life,” “terror attack,” and “national security conspiracy” exceptions. This article reviews the various drone proposals and other applicable policies and then explores their impact on domestic CT operations by applying eight just-passed state drone laws to a hypothetical scenario based loosely on the 2013 Boston Marathon bombing.

This exercise illustrates that under the right circumstances during a domestic CT event, most legislative drone proposals would aid government operators in “finding and fixing,” or locating, terrorist targets much more so than “finishing” them, whether by lethal force or by later use of the information collected in a judicial forum. Interestingly, when it relates to domestic CT, the exceptions could likely swallow the rule, allowing government actors great flexibility to use a drone to collect information or evidence without a warrant. On the other hand, ironically, with regard to “finishing” terrorists with drones on the home front, the proposals that include prohibitions on weaponizing drones or that would exclude evidence collected in violation of bill provisions, would severely inhibit the ability of the government to take action against the perpetrator, once he is finally located.

I propose that it would be helpful to both security and privacy for law makers to better define legislative exceptions, add additional privacy protections, to codify the expected role of Department of Defense drones in domestic CT operations, and reconsider ramifications for rule violations. Implementing drone legislation mindful of these concepts will allow drones to be used to their full operational potential while also preserving civil liberties.

Keywords: drone, drone legislation, privacy, counterterrorism, domestic operations, U.S. government

JEL Classification: K19