The District Court for the District of Columbia finds that certain records regarding the Federal Bureau of Investigation’s use of drones were properly exempt from a request of action under the Freedom of Information Act (CREW v. DOJ)

The Policy

What it does

Upholds the Federal Bureau of Investigation’s decision to withhold records of drone usage, including domestic, when disclosing such records could impact national security, harm the competitiveness of contracted drone companies, or reveal law enforcement techniques.

Synopsis

In Citizens for Responsibility and Ethics in Washington v. United States Dept. of Justice, 160 F.Supp.3d 226 (D.D.C. 2016), the District Court for the District of Columbia found that the Federal Bureau of Investigation (FBI) properly withheld certain records on its use of drones and unmanned aerial vehicles (UAVs) from a Freedom of Information Act (FOIA) request that implicated national security, confidential trade secrets and law enforcement techniques.

The court found the FBI was authorized to withhold records of drone usage in the interest of national security. Specifically, the court agreed there was a risk certain records could alert foreign targets that they were under investigation as well as identify the sources and limitations of the drones being used. By preventing the disclosure of these documents, watchdog organizations like Citizens for Responsibility and Ethics in Washington (CREW), the Plaintiff in this case, could find it more difficult to learn about domestic drone usage. However, preventing the disclosure of this information also ensures it remains out of the hands of individuals who might use it to harm the United States’s interests. 

In addition, the court approved the FBI’s withholding of records regarding drone vendors and operating manuals because of a concern for potential harm the companies could face competitively if these records were disclosed. This ruling protects the interests of companies who voluntarily, or as part of a mandatory disclosure, give detailed information to the FBI. 

Finally, the court agreed with the FBI in its withholding under the FOIA law enforcement exemption of certain drone capabilities, vendor identities, and funding. The court reasoned that withholding this information protects against individuals using it to more easily circumvent law enforcement.

Context

<p>The <a href="http://uscode.house.gov/view.xhtml?req=(title:5%20section:552%20edition:prelim)%20OR%20(granuleid:USC-prelim-title5-section552)&amp;f=treesort&amp;edition=prelim&amp;num=0&amp;jumpTo=true">Freedom of Information Act</a> (FOIA) creates a right for the public to ask any federal agency to disclose records unless the records implicate express exemptions.&nbsp;FOIA was passed in 1966 as an <a href="http://nsarchive2.gwu.edu/nsa/foialeghistory/legistfoia.htm">effort by Congress</a> to ensure accountability in the Johnson administration.</p>

<p>In seeking a FOIA request, the <a href="https://www.justice.gov/oip/freedom-information-act-5-usc-552">requester can file a complaint</a> with the district court to get the request enforced. The court has the power to review withheld information <a href="https://www.law.cornell.edu/wex/de_novo">de novo</a>, which means the court does not have to defer to the federal agency’s decision to withhold the records. If either party believes there is no genuine dispute of material fact, the party can file a <a href="https://www.law.cornell.edu/rules/frcp/rule_56">Motion for Summary Judgment</a> with the court. When the court agrees that there are no issues that need to be litigated further, the court can grant the motion and end the litigation.</p>

The Science

Science Synopsis

Drones, or unmanned aerial vehicles (UAVs), are aircraft operated and controlled by pilots on the ground. The US military began using drones under President Bush’s tenure, and President Obama further expanded the military use in foreign operations. Drones are commercially available and have been increasingly employed by law enforcement for surveillance purposes.

Law enforcement surveillance drones, including those used by the FBI, tend to be smaller in size than military drones, making them harder to detect from the ground. They usually have high definition cameras that can take photographs and real-time video streams. They can also come equipped with infrared cameras for thermal imaging, GPS, and sensors to detect small movements. The specific capabilities for FBI drones are largely unknown given their confidential nature, but the FBI has explained that they are not used for mass surveillance operations.

In 2015, the Department of Justice issued guidelines explaining that drone usage must follow the same constitutional protections as other investigative techniques including seeking a warrant, avoiding unreasonable searches, and respecting individuals’ First Amendment rights.

Relevant Experts

Mary “Missy” Cummings, Ph.D., Professor in Duke Pratt School of Engineering Department of Mechanical Engineering and Materials Science, the Duke Institute of Brain Sciences, and Director of the Human and Autonomy Laboratory and Duke Robotics. 

Maj. Gen. Charles J. Dunlap, Jr., USAF (Ret.), Professor of the Practice of Law at Duke University School of Law, Executive Director of the Center on Law, Ethics and National Security.


The Debate