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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

Fight for U.S. Drone Flight Details Heats Up

(CN) - The Department of Homeland Security urged a federal judge to throw out demands for it to identify counties where it conducts surveillance drone flights over U.S. soil.

The Electronic Frontier Foundation (EFF), a digital civil liberties group, sued the agency late last year for information on, among other things, the policies that the department and its component Customs and Border Patrol (CBP) had in place for domestic surveillance by unmanned aircraft.

In litigation, it won three years of redacted "daily reports" that revealed the department arranged more than 500 flights for dozens of law-enforcement organizations, and that more than a fifth of these flights helped Immigration and Customs Enforcement, the EFF says.

The FBI, the Drug Enforcement Administration, the U.S. Coast Guard, the Bureau of Indian Affairs, and several branches of the military also received drone assistance as well as several County Sheriff's Offices, the locations of which were redacted.

The government defended its redactions in a 22-page motion for summary judgment: "If CBP were required to disclose this information for all of the Daily Reports, one could piece together the locations where CBP [unmanned aircraft systems] operate or do not operate," the brief states. "It would also show the frequency throughout the year that the UAS operate in a given geographic location. ... Knowledge of this information would reveal the law enforcement priorities of CBP and other supporting agencies, as well as OAM techniques for supporting law enforcement investigations. This would present a serious threat to future law enforcement investigations and would risk circumvention of the law."

In a reply brief filed Wednesday, the government again argued that "it is logical that the release of specific information about where CBP is authorized to fly might create a risk of circumvention of the law because persons could target their illegal activity in those areas where CBP is not authorized to fly, thus impeding ongoing enforcement activities."

It also says that it properly withheld information regarding the drones' operational capabilities because the "exact contours of their abilities and limitations are not publicly known." Law enforcement efficiency would decline if they were, it added.

EFF's cross-motion for summary judgment is also before the court, which argues that releasing location information would not allow suspected criminals to determine the government's awareness of their illegal activities.

"In Arizona, where CBP bases at least four of its Predators, the average county size is 7,573 square miles, and the largest county - Coconino - is 18,619 square miles," the brief says.

Furthermore, it is well known that there is significant drug activity along the Mexican border.

"Given the size and populations of these counties and their high crime rates, it is hard to imagine that releasing location information such as county names - or releasing other location information withheld in this case - would allow suspected criminals in the area to link CBP's drone surveillance to their particular criminal activity," EFF claims.

Given that the withheld information would not lead to a "circumvention of the law," DHS should be compelled to release the information under the FOIA, the organization says.

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