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Directive: Air Force Can Evaluate Information About You Collected by Drones -- if It's 'Incidental

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"accidental spying provides an entrance point into deliberate investigations, all done without a warrant"

(Photo: U.S. Air Force via Wikimedia)

With the recently enacted Federal Aviation Administration Reauthorization Act allowing for regulations that will open up the sky to more unmanned aerial vehicles by 2015 and more news spreading about the amount of drones used by local law enforcement, there has been growing concern over their pervasive nature spying on American citizens. As Wired notes, "nonconsensual surveillance" by the military is a no-no, but a directive for the Air Force was recently revealed showing that if the information picked up by the drone was "incidental," it can be maintained and reviewed for a length of time.

Wired has more:

Collected imagery may incidentally include US persons or private property without consent,” reads the instruction (.pdf), unearthed by the secrecy scholar Steven Aftergood of the Federation of American Scientists. That kind of “incidental” spying won’t be immediately purged, however. The Air Force has “a period not to exceed 90 days” to get rid of it — while it determines “whether that information may be collected under the provisions” of a Pentagon directive that authorizes limited domestic spying.

In other words, if an Air Force drone accidentally spies on an American citizen, the Air Force will have three months to figure out if it was legally allowed to put that person under surveillance in the first place.

Here's exactly how the directive puts it:

Information inadvertently received about US persons may be kept temporarily, for a period not to exceed 90 days, solely for the purpose of determining whether that information may be collected under the provisions of Procedure 2, DoD 5240.1-R and permanently retained under the provisions of Procedure 3, DoD 5240.1-R. If there is any doubt as to whether the US person information may be collected and permanently retained, the receiving unit should seek advice through the chain of command, Judge Advocate General (JAG), or IO monitor.

[...]

Incidentally acquired information reasonably believed to indicate a violation of federal law shall be provided to appropriate federal law enforcement officials through AFOSI channels.

Information incidentally acquired during the course of Air Force counterintelligence activities reasonably believed to indicate a violation of state, local, or foreign law will be provided to appropriate officials IAW procedures established by the Commander, AFOSI. Information incidentally acquired during the course of Air Force foreign intelligence activities reasonably believed to indicate a violation of state, local, or foreign law will, unless otherwise decided by AF/A2 for national security reasons, be provided to AFOSI IAW procedures established by the AF/A2, or his/her designee, for investigation or referral to the appropriate law enforcement agency. Information covered by this paragraph includes US person information (See paragraph 12.).

While some of this drone use is to evaluate natural disasters, collect information on the environment and to monitor its own military bases, Wired points out where this collection of data becomes concerning is when "accidental spying provides an entrance point into deliberate investigations, all done without a warrant." It provides this example:

So what begins as a drone flight over, say, a national park to spot forest fires could end up with a dossier on campers getting passed on to law enforcement.

Wired considers this oversight of intelligence activities "ironic" as it is meant to help prevent pervasive spying while using this technology. Still, the directive does include a measure in which it states information collected on citizens must be done so legally and in the using the "least intrusive means possible," which includes using public information, obtaining consent of the citizen, or following the proper legal channels.

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