Tuesday, March 16, 5 - 6:15 p.m.
Virtual Event: Disinformation and Democracy

Join our Collier County Chapter on Tuesday, March 16 for a conversation about disinformation and democracy,

Nick Penniman IV is the former publisher of the St. Louis-Post Dispatch. Nick Penniman V is the CEO of Issue One, a national democracy-reform organization. Together they helped found NewsGuard, a company aimed at fighting fake news and disinformation both here and abroad. They will discuss the rise of disinformation, the threats to democracy and public health, and concrete solutions to elevate facts and journalism in public discourse.

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Tuesday, March 16, 2021 - 5:00pm to
6:15pm

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Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

The Federal Aviation Administration recently took a major step toward expanding the prevalence of aerial drones in American life by creating a system for identifying and tracking them. The new system is part of a steady march by the FAA to build a legal and technological infrastructure that allows for much greater freedom for drone flights.

Since drones first came to real public attention about a decade ago, the technology hasn’t lived up to either its promise or its threat, primarily due to the FAA’s cautious approach to allowing drone flights. Historically, drones (known more formally as unmanned aircraft systems, or UAS) were not allowed to be flown at night, over people, or beyond the visual line of sight (BVLOS) of their operators. That approach was never going to allow drones to live up to the promise of TacoCopters, Amazon deliveries, or autonomous flight — i.e. self-navigating drones not under the remote control of a human pilot on the ground. They also kept at bay the threat of pervasive aerial surveillance.

The FAA’s rulemaking creating a “Remote ID” infrastructure for identifying and tracking drones was accompanied by another rulemaking that loosened the restrictions against nighttime operations and flights over people. These rules have been seen as a crucial prerequisite for greater freedom for drone flights. The reason? Security. A regulatory framework permitting routine BVLOS flights was never going to happen, as an FAA advisory committee put it, “until the law enforcement and national security communities are comfortable with their ability to identify and track” drones.

The security concerns around UAS are very real. Amateurs and others have attached guns and flamethrowers to drones, and in 2012 a man was convicted of plotting to blow up the Capitol and Pentagon using a drone.

But just how much tracking is needed? A nationwide government system for tracking drone usage implicates several civil liberties interests, including the privacy of people on the ground, the privacy of drone users, and First Amendment interests in public photography. Such a system threatens to erase any possibility of anonymous operation of drones so that, for example, an activist wishing to record corporate malfeasance or police actions at a protest might be targeted after the fact, or chilled before it.

In our view, while that represents a real loss, the privacy interests of people on the ground take precedence, given the strong potential use of drones for mass surveillance. As a result, we think the concept of a system akin to “license plates” for drones is not unreasonable. Aircraft, like cars, can affect the safety of others and thus are highly regulated. Drone “license plates” would provide accountability for drone operators and could help protect privacy by giving everybody the ability to identify who owns a drone flying overhead.

There were a number of ways the FAA could have structured a tracking and identification system. Car license plates can be seen by anybody near a car — and only those near the car — but generally nobody except the police can look up the identity of the person to whom a vehicle is registered. Piloted aircraft also carry a visual unique identifier called an “N-number,” but unlike car license plates, anyone can look up their registered owner in a public FCC database. (Though to protect privacy, the FAA does offer an option for piloted aircraft to apply to obtain a temporary address not linked to the aviation registry, but known only to the FAA.) Furthermore, in much of the nation’s airspace, all aircraft are required to broadcast their N-number through radio transmissions. That means they can be identified even when too far away for their N-number to be read, and it means that they can be tracked through a nationwide bird’s-eye view of the nation’s airspace.

So which system did the FAA choose?

In its initial proposed rule issued in 2019, the FAA announced that it wanted to require drones to connect to the internet and constantly transmit their registration ID and location to one of several private companies that would aggregate that data and share it with the FAA and law enforcement. This questionable arrangement would have given private companies — but not the public — a bird’s-eye view of every drone currently flying in the United States.

However, after receiving over 50,000 public comments (including from the ACLU), the FAA in its final rule dispensed with the internet connection requirement and confined its rules to requiring an alternate technology: broadcast transponders that would broadcast their unique ID numbers locally to anyone within range. We think this is good; the broadcast Remote ID should be sufficient to achieve both the security goal of allowing facilities to identify and deter illegal or hostile drone flights and the privacy goal of empowering individuals to know what aerial cameras may be recording them.

In its new regulations, the FAA does say that it intends to allow drone operators to obtain a “session ID” — an ephemeral identifier (akin to that available to piloted aircraft) that would shield the operator from having their identity connected to a particular drone. While that would be a good thing for professional and citizen journalists, it would also mean that members of a community may have no idea whether a drone hovering over their home belongs to Amazon, the police, or the kid who lives down the street. And the public won’t be able to track the activities of corporate or police drones over time. The FAA says that the details of session IDs will be worked out in a future rulemaking. In our view, if there’s to be a session ID, it should not be available to police or other government drones (other than perhaps in exceptional circumstances where there is a strong immediate justification for such secrecy), or to corporate drones flown by companies like Amazon or Google.

This is the infrastructure that will govern drone flights in the U.S. moving forward. Drone manufacturers have 18 months to start building transponders into drones, and operators have 30 months to retrofit their drones with transponders. The session ID issue aside, the FAA is doing a good job in building an infrastructure that will give us the ability to know what “eyes in the sky” are observing our streets, communities, and cities. While details still need to be worked out, the agency’s goal seems to be a system in which anyone can see the “license plate” of nearby drones on their cell phones.

That capability, advanced by the FAA’s new Remote ID rule, will become increasingly important if drones proliferate in American life — if they prove practical as everyday delivery vehicles, for example, or if, despite our opposition and that of many communities, drones are allowed to engage in routine or mass surveillance over our cities and towns. At the same time, the FAA’s new rule itself just brought all of those things much closer to reality.

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Tuesday, February 9, 2021 - 12:00pm

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The FAA's new drone tracking regulations represent a major step in expanding the prevalence of drones in American life.

Naureen Shah, Senior Legislative Counsel and Advisor

President Biden’s 100-day deportation moratorium, announced late last month, was a monumental achievement for immigrant justice activists and immigrant communities. Less visible but potentially groundbreaking: The Department of Homeland Security’s promise to conduct a top-to-bottom review of programs and policies governing the arrests and deportations of immigrants in the United States.

While a Texas court temporarily enjoined the deportation moratorium (the ACLU has intervened in the case), the top-to-bottom review will go forward. Its success is the key to the puzzle of how to actually limit deportations and keep families together over the course of Biden’s presidency. What’s at stake? Whether millions of immigrants and their family members — many of whom have lived in the U.S. for years — will be forced to live in fear of being deported, and torn away from their families and communities.

DHS set out the deportation moratorium in a short memo, which stated that immigration enforcement in the interior of the United States should “prioritize responding to threats to national security, public safety, and border security.” It set out corresponding “interim civil enforcement priorities” that will apply during the 100-day period, pending the full review. And this week, Immigration and Customs Enforcement will issue new interim guidelines designed to make ICE agents accountable to the interim priorities. Taken together, this is a major break from the Trump administration’s approach, which effectively made all undocumented people targets for deportation and gave ICE agents free rein.

We have serious reservations about the interim enforcement priorities, which use sweeping and overbroad terms that have harmed communities of color for decades and mischaracterize all recent border crossers as threats to border security. Still, this news is significant: limiting immigration enforcement to these priorities would likely protect tens of thousands of people from deportation.

But without additional serious reforms, there is no reason to believe that ICE will abide by the Biden interim priorities and their eventual successor priorities. Even now, ICE agents are saying publicly that they intend to undermine the new administration, ICE’s spokesperson is touting the agency’s “unlimited discretion to evaluate any conduct” to justify arresting individuals on “public safety” grounds, and ICE is deporting individuals who should be protected by the Biden interim priorities.

As long as ICE has the resources to track, arrest, and deport large numbers of people, it will attempt to do so, bending the law to its prerogative. That is the lesson of the Obama years, when ICE flouted the enforcement priorities and related reforms, deporting thousands of individuals who did not meet its criteria. ICE also continued to regularly issue detainers requesting that state and local law enforcement agencies jail individuals past their release date, so that ICE could deport them, although the DHS secretary had directed detainers to be used only in “special circumstances.”

At the time, immigrant justice groups argued that ICE’s deportation and detention quotas had not changed in response to the Obama enforcement priorities, and there was simply “no evidence” that ICE agents would “actually modify their practices.” In recent years, Freedom of Information Act requests have confirmed that ICE deportations continue to be quota-driven — not public safety driven, as it claims.

Biden’s review of immigrant enforcement policies must reckon with how to change both ICE culture and capacity. This is hard, but one of the clearest fixes is ending ICE programs that use state and local law enforcement as “force multipliers.” These include the 287(g) program, ICE detainers, and Secure Communities.

Under these programs, local police have helped ICE ensnare thousands of people in an indiscriminate deportation dragnet — the opposite of the limited approach the Biden administration has promised. Here’s how: Being in the business of immigration enforcement incentivizes local police to make pretextual arrests on state or local criminal grounds — with the actual goal of identifying immigrants to detain for ICE’s deportation. It emboldens law enforcement officers across the country to use immigration enforcement as a means of threatening and harassing people in immigrant communities. Racial profiling, harassment, and constitutional violations have resulted, as congressional hearings have detailed.

Local police jail people on ICE detainers, which ICE agents issue unilaterally with no outside review. ICE uses detainers in local jails as a “stop gap measure” to give the agency time to pick up people encountered by local police, despite often lacking probable cause to believe they are deportable. This is one reason why so many U.S. citizens and immigrants have been wrongfully detained by local police on behalf of ICE.

It doesn’t have to be this way. These ICE programs are in many ways a vestige of the post-9/11 era of government overreach and destruction of civil rights. ICE turned to state and local law enforcement, claiming “terrorism” concerns as justification in a strategy championed by Kris Kobach. Here, as in so many instances, “terrorism” was simply cover for the government to expand its powers and engage in biased profiling — not make us safer.

Date

Tuesday, February 9, 2021 - 11:00am

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The systemic abuses of ICE make communities less safe — especially when they act in tandem with law enforcement through programs like 287(g), ICE detainers, and Secure Communities.

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