In 2011, Rodney Brossart, a farmer from Lakota (North Dakota) was arrested by the county police. Brossart, who was armed, was in a dispute with the authorities over the ownership of six cows and refused to turn over the animals that had meandered onto his ranch property. After his arrest, Brossart charged the police with violation of privacy. Indeed, the police team had arrested him helped with a “Predator” unmanned drone, provided by the Homeland Security Department. This observation vehicle had played a crucial role to locate the suspect inside his own house and assist the policemen during the assault. However, no trial court is ever likely to hear this case. The police officers involved had a warrant and could easily prove that they used the drone for surveillance purpose only, and not, as claimed by the suspect, to create a ground for prosecution after the facts. This was the very first encounter, and certainly not the last, between an “unmanned aerial vehicle” (UAV) and the US justice.
Drones are used on a daily basis by police forces, the FBI and the Drug Enforcement Agency. UAVs are used to locate and follow the track of suspects in criminal affaires thanks to their ability to observe from strategic spots without ever being seen. Some US agencies even dream of using these resilient, precise and maneuverable vehicles in order to contain riots, by arming them with rubber bullet guns.
Observers calculate that by 2020, about 30000 drones equipped with cameras will fly at low altitude above the US territory. UAVs are almost ubiquitous, all-knowing and invisible, thanks to their optical sensors and high-end electronics. They will drastically modify the social and economic life of the country they are used in. From September 30th 2015 (at latest), the US sky will be open to flying drones up to 130 meters altitude (just like remote-controlled toys). This will pave the way for a wide scope of uses, in fields that could positively benefit from multispectral imagery: agriculture, fishing, meteorology or the control of forest fires (in 2012, UAVs have been intensively used by the fire department of the French region of the Landes). The transportation and the security sectors will eventually also become intensive users of this technology.
The potential uses are limitless and respond to an increasing social demand for continuous information in video form. Some people even suggested using drones to check whether citizens recycle their garbage as requested by law. Some real estate agencies rent drones to film properties. Most action movies use drones to shoot their aerial views. What was once a highly specialized device is now quickly extending to more general uses and fields. Two further developments will play a crucial role: first of all, the rise of VTOL UAVs (vertical takeoff and landing drones). No need for a runway anymore! Secondly, the general use of UAV “sense and avoid” systems, that will ensure traffic safety.
At this day, drones operate in a legal vacuum that has triggered a raging debate in the US around the sacred principles of constitutional rights. Indeed, when a drone is used to follow suspects, it breaks into their private sphere… and sees all of it. The Fourth Amendment of the United States Constitution guards citizens, their residence, properties and documents against any “unreasonable search or seizure”. Besides, the amendment requires a warrant to be judicially sanctioned and supported by “probable cause”. Other issues are more prosaic: when a drone programmed for a wide scope of action is involved in an accident, who is responsible? There are innumerable questions waiting to be answered. But after all, who would have imagined that the Metro would one day run without a driver or that a lift would work without a groom?
Obviously, it’s in the military field that drones show their most advanced abilities – and where they received their most fierce criticism.
For military staffs, the drone’s ability to stay several dozens of hours above the same observation spot and detect any minor change in the landscape, coupled with the possibility to send high-quality video imagery to the headquarters, represents a giant leap forward. While drones are used, the lives of many human pilots are kept out of danger. Besides, drones guarantee a quality and concentration that no human being will ever be capable of. Drones equipped with infrared sensors, or radars, are even more useful than satellites, as their can stay permanently above the same spot. Drones could also be used as automated ambulances for emergency extraction of the severely wounded in combat zones. In Afghanistan, some US outposts are re-supplied by drones during the night.
Drones have gradually become a war weapon that completes the operations of traditional combat planes, by neutralizing enemy anti-air defense systems. Israel, for instance, compensates its lack of strategic depth by an intensive use of surveillance drones one generation ahead of all the other players in the region. Drones are used to “neutralize” targets that are located in places where physical and political risks are too high. In South Lebanon or in Gaza, Somalia, Yemen and Pakistan, many Islamist activists have been eliminated by drones. In 2013, the US Air Force will have more drone pilots than F-16 pilots.
International law is clearly flouted, since neither the US nor the NATO is officially at war in none of these last three countries. Some would retort that the “global war on terror” transforms of the entire world into a battlefield. The United States have justified many times their missions by basing their use of violence against enemies in foreign land, on whether the target country “consents, is incapable or refuses” to act. But this “license to kill” – to quote a UN rapporteur – is not supported by any judicial framework. Even in the US, the law makes a clear formal difference between State murders (which are illegal since 1976) and targeted killings that are carried out within the “war on terror”. And yet, the idea of “legitimate defense” which sustains drone strikes is still extremely vague, from a juridical point of view.
Drones may very well be the ultimate weapon: they’re reliable, insensitive and can provide real-time intelligence. They successfully crown C4i systems (Command, Control, Communications, Computers & Intelligence) and even C5i, by adding “Confusion”. Each operating drone sends a continuous flow of high-quality video imagery to the ground base. This data deluge, which comprises optical, optronical and radar data, challenges the bandwidth capability. However, if data is transferred fast enough, the human brain expertise is the real edge when analyzing situations. To speed up even more the process, experts have been working on IA software that compile and integrate data and send to the ground only the final results of analysis. This would certainly contain the bandwidth needs although it also assigns a very high responsibility to the software.
This increase of drone involvement clearly modifies the behavior of military decision-makers at all levels of hierarchy. For a unit officer for instance, there is no turning back. The intelligence provided by drones, especially in terms of efficiency and troop safety (to check if the earth at the side of a road had been recently moved to hide an IED – an improvised explosive device – which are especially dangerous for troopers) is virtually impossible to ignore. If there aren’t any drones available, the officer will very certainly hesitate before launching an operation.
Another crucial parameter: without any precise instructions, the data sent by drones could be seen by all levels of hierarchy, from the officer to the head of State – who could eventually want to take hold of the situation. This issue could create a great deal of confusion regarding the decision making process involved in each specific level of hierarchy: who decides whether to strike or not a target? How should we apply the principle of subsidiarity? The disorder around these questions could delay the decision-making process and generate this awkward situation: a remarkable technology would become the main cause of lag! While the famous “fog of war” fades away, the decision making process is not necessarily eased because the organization between decision-makers and ground officers grows more complex. To speak like a sociologist, there are tensions between the two ends of the spectrum.
With the upcoming UCAV attack drones, the problems of responsibility will be even more obvious. Surveillance drones (UAVs) are slow, persistent and not especially stealthy vehicles. It’s possible to “communicate” with them quite freely. On the other hand, UCAVs are fast, stealthy vehicles with limited communications with the base station. In the end, the decision to shoot at target will be made by the machine. Even when remote-controlled by a “human” being, a drone attack always makes human casualties. Drone pilots who operate from behind computer desks based in Beale, northern California, are not psychologically immune to the effects of their decision to launch a Hellfire missile at a truck full of Taliban. Their responsibility is a mix of routine, distance and lethal warfare, which seems to provoke deep personality disorders. On their way back to the US from Afghanistan, GI soldiers are often encouraged by the Pentagon – and sometimes forced – to take 3 days off in Germany, like in a decompression chamber, before heading back home. A drone remote pilot, once he shoots at the Taliban truck 20000 km far, will go back and have dinner with his family…
Drones have opened a third dimension in all aspects of social, economic and military life. In the past, this dimension was reserved to satellites; only that now drones have grown much more flexible and resilient. At this stage, it is impossible to foresee the complete consequences of this breakthrough. We can only hope that the widespread use of drones will go along with a greater control of their power. Technologies are often available long before societies know what to do and how to use them. Law tries by all means to create a framework of action that limits these infinite possibilities. The Internet is an even greater challenge for law, as it bypasses borders, laws and locations. The case law around drones will certainly give many more raging debates.