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The Public Calls for a No Drone Zone: The City Council Dithers

By Gar Smith
Thursday May 01, 2014 - 04:34:00 PM
Gar Smith
Gar Smith

It was supposed to be a night to "Ground the Drones" but, as Berkeley Peace and Justice Commissioner Bob Meola put it, "it was more like the movie, Groundhog Day" — an experience of being trapped in a maddening rerun of past events and unable to move forward. 

It was back on December 18, 2012, that the Berkeley City Council was first presented with a resolution to proclaim Berkeley a "No Drone Zone." At the time, the Berkeley Review Commission asked the City's Peace and Justice Commission (PJC) and Police Review Commission (PRC) to gather more information report back to council "for further consideration of the issues" at a Council Workshop on Drones. 

In May 2013, the two commissions hosted a crowded three-hour Town Hall meeting to gather public input on a proposed citywide ban unmanned aerial vehicles, a.k.a. drones. [See "Drones or No Drones?" Berkeley Daily Planet

Representatives from prominent civil rights and electronic privacy organizations were joined by scores of citizens who raised concerns about the documented risks drones pose to both public safety and personal privacy. 

Based on these hearings—and months of research—the PJR and PRC produced an extensive 19-page report backed up with no less than 57 detailed footnotes. 

On April 29, in advance of the City's regular Tuesday Council meeting, the Mayor Tom Bates and a half-dozen councilmembers convened a special workshop to consider the commissions' joint-report and a resulting "No Drone Zone" resolution. The commission's findings were underscored by the expert testimony of a bevy of civil rights lawyers. But, at the end of the workshop, instead of acting on the extensive information that had been gathered, the council majority elected not to act. 

Concilmember Max Anderson called the workshop "useful" but suggested "the council would be better served by a real concerted effort to bring experts together and really talk about all the dimensions of the possible use of these things and maybe we'll get a fuller, more fresh, fleshed out view of what our civic responsibilities are." 

Meola, the other commissioners, expert witnesses on hand and members of the public were stunned. Hadn't that been exactly what they had been devoting their energies to for the past three years and the past 90 minutes? 

As a dejected Meola observed, "It felt like starting over and repeating where the issues were left in December 2010." 

Drones Redux: The Workshop Assesses the Risks 

In his opening statement to the Council, Peace and Justice Commissioner Bob Meola decalred: "We believe the recommendations to adopt the resolution and proclamation declaring Berkeley to be free from drones and [to] secure these aims is well-researched, well-thought [and] addresses the situations we were tasked to examine," 

Meola informed the Council that, since the PJC's original recommendation in 2010, eight US cities—including Charlottesville, North Carolina; Syracuse, New York; North Hampton, Massachusetts; Minnesota; Evanston, Illinois; Iowa City, Iowa; Lincoln, Nebraska; and Seattle, Washington—had enacted "no drone" ordinances. 

"Now is the time for Berkeley to form its own policy on drones," Meola said. 

In addition to concerns about "the moral and political consequences of drones," Meola pointed to a number of well-documented safety issues: 

• Drones are known to go off course, disappear and crash into other objects. 

• They can be easily hacked and manipulated off course and used in ways not intended by their operators. 

• Even in the best conditions, drones pose significant risk to safety. 

• More drones in the skies over US cities would mean more drone accidents. 

• Drones are, in the words of Business Week, "the least safe class of aircraft in operation." 

Michael Sherman followed with a statement on behalf of the PRC. Dismissing a comment from a local TV station that described the drone ban as "a made-up crisis," he noted that the response to the 9/11 attacks has prompted a "massive erosion and invasion of political and civil liberties, of which drones are but one manifestation. NSA spying, the mass surveillance of the FBI, Homeland Security's involvement in the nationwide Occupation movement, CIA spying on senators, the dragnet surveillance of US citizens, are but a few examples. 

"There should be no drones before rules and regulations are in place [to safeguard] civil liberties," he concluded. Simply put, "the laws on privacy have not kept up with the technology." 

Jack Hamm, Vice Chair of the Disaster and Fire Safety Commission, reported that the DFSC had voted 6-to-1 that drones "could and should be used —in appropriate circumstances." He did not acknowledge or address the concerns raised by his fellow commissioners. Instead, he proposed that, in addition to fighting fires and chasing felons, drones could somehow be used "to protect the privacy and civil rights of citizens in Berkeley." The DFSC also insisted that the Police and Fire Departments should have sole control over the use of drones. Any other uses would need to be approved by the City Manager on a case-by-case basis. 

Nadia Kayyali, an activist with Electronic Frontier Foundation, cautioned that the DFSC's position was "not sufficiently detailed to cover the degree of concerns, the Fourth Amendment issues that arise" with the use of drones. 

The Public Speaks 

The 90-minutes workshop attracted a wide range of drone critics —including representatives from the ACLU, the Electronic Freedom Foundation, the Bill of Rights Defense Committee, Environmentalists Against War and Cop Watch—followed by more than a dozen anti-drone pleas from Berkeley citizens. A small contingent of UC engineering students spoke in defense of drones. 

Tessa D'Arcangelew, an ACLU representative, called drones "a major threat to our privacy" and cited several areas of concern. 

"The first is cost. By dramatically reducing the cost to acquiring information, technology also removes the natural barrier to abuse. Tailing a suspect 24/7 through conventional means requires a huge amount of resources but drones offer extended surveillance of, not one, but possibly thousands of people. Therefore, mass surveillance can be conducted based on mere idle curiosity. 

"Drones are small, hovering platforms. They can explore hidden spaces or peer into windows. They can be equipped with high-powered night-vision cameras and "see-through" imaging [that] can monitor people through walls and inside of a building through distributed video. Drones, like a swarm of insects, can scoop up information to provide comprehensive surveillance and then video analytics can look at all the information ... to recognize and track specific people, events and objects.... We need legislation that anticipates the inevitable evolution in the technology that will happen."
Because drones pose "great civil liberty concerns," the ACLU's position is that drones "need to be highly regulated." 

"We urge you to take the important step of listening to your community and what the Peace and Justice Commission and Police Review Commission say," D'Arcangelew concluded. "They have come forward with thoughtful, well-reasoned and well-researched proposals." 

Surveillance Drones as 'Ghetto Birds' 

A woman with Alameda County Against Drones declared the organization's opposition to "corporate drones in our skies. It is a vehicle of repression against individuals, and political movements.... Helicopters now hover over low-income neighborhoods-of-color so routinely they are sometimes referred to as 'ghetto birds.' We are increasingly seeing local law enforcement use Homeland Security grants to buy new high-tech toys, which increase militarization of law enforcement without making anyone safer. The Alameda County Sheriff's Department bought an armored carrier to a political demonstration in Oakland only to show it off and intimidate political protesters." 

George Lipmann, Vice Chair of the Peace and Justice Commission, noted that "the amount of information gathered through the use of drones. . . is closer to an invasive body search or a search of your home than it is to a passive eye-in-the-sky helicopter, simply because the technology is so advanced." 

Lippman expressed concern that "drones by any agencies that are under contract with the City [could channel] data flows into the intelligence network of the city government and ... the vast and expansive intelligence network of this country, which should scare all of us." 

Jeremy Gillula, one of two drone opponents from the Electronic Frontier Foundation, began with a confession. "Prior to joining EFF," he said. "I was a doctoral student at robotics at Stanford and UC-Berkeley. My dissertation was on algorithms to guarantee drones would operate safely. As such, I think I have a unique perspective on drones.... I agree with my colleagues and many others that their unchecked use by the government can pose to civil liberties." 

However, Gillula added, he believes drones could be used for the public good, for creative and artistic purposes, offering "potential benefits [for] private citizens when properly regulated and safely regulated." In public hands, drones could even allow more effective "independent police monitoring" by citizens watchdog groups, he observed. "It's a lot harder for a police officer who doesn't want to be filmed to snatch a drone out of the sky than it is for him to snatch a cell phone camera out of someone's hands." 

Responding to the issue of private drone use by civilian hobbyists, Meola Michael Sherman of the PRC emphasized that the PRC/PJC resolution "did not take a stand on the personal use of drones. . . for the simple reason we thought that was beyond our review." 

Drones in Private Hands: Hobby or a Horror? 

The handling of the private use of drones is a sticking point. The proposed resolution also fails to specifically address the proliferation of commercial drones. The FAA, surprisingly, has taken a position on commercial drones—they were banned. The FAA actually fined a photographer $10,000 for using a drone to film a commercial on the University of Virginia campus. But on March 6, a federal judge dismissed the charge, ruling that there was, in fact, no actual law banning the use of commercial drones. That ruling has turned the airspace into a "land-rush opportunity" for the burgeoning commercial drone industry. As Politico reported, the ruling "appears to make it legal for drones to fly at the low altitude as part of a business — whether that’s delivering beer, photographing a baseball game or spraying crops." In other words, "the sky's the limit." 

Drones, Angry Birds and Elephants 

Gar Smith*, representing Environmentalists Against War, addressed the council at the invitation of the Peace and Justice Commission and offered "eight additional reasons to ban drones." The list included the latest drone crashes inside the US and a new and, as yet, little-known environmental problem—a rash of deadly drone encounters with angry birds. [See sidebar.] 

Three UC Berkeley grad students spoke in defense of drones. "Where would we be if we had prohibited cars or banned cell phones because Internet connections could potentially breach people's privacy," one student asked, "Clearly those would have been unwise and unfortunate choices." 

Another student warned that a drone ban would destroy careers and commerce. "Banning drone technology in Berkeley would constrain our research and would limit the opportunities for new research in entrepreneurial directions. It would also make UC-Berkeley less attractive to world-class researchers who work in this area and give an advantage to our competitors, including both MIT and Stanford, who have thriving UAV programs." 

The only other drone defender was an autopilot designer who praised the utility of drones for land and resource management as well as for search and rescue missions. Thanks to drones, he said, poaching of elephants in Kenya has now been cut by 95%. [Note: The Kenyan government has not yet introduced its drone program and there appears to be no support for the claim that drones have cut elephant poaching by 95% anywhere in Africa. To the contrary, since the 1980s, the poaching of Liberia's elephants has reduced their population by 95%.

The Council Responds 

Reflecting on the testimony from the UC Berkeley students, Councilmember Max Anderson remarked: "Every technology starts out with very benevolent beginnings, usually in a lab someplace with eager and rigorous scientific investigation and capturing the minds of young inventors and so forth [but], once you open the door to this without a regulatory foundation, the technology drives everything and not the ethics, not the applications of these things. 

"I fully understand graduate students working on robotics and other kinds of scientific endeavors may have visions of sugarplums dancing in their heads—or IPOs and stock splits coming their way—but there is a larger context in which all these things happen. We've seen the misuse of technology. And once the door is open and you don't have a real regulatory and oversight control on it, the technology drives the politics and the economics of it. And that's a bad situation for a society to be in, having lost control of the ethical direction that we move in." 

At the end of the public comments, the council majority appeared unmoved. No one expressed any interest in joining the growing number of US cities that have already acted to prevent drones from filling their skies—especially if these sophisticated surveillance devices were to be placed in the hands of the Police Department. 

One councilmember pointed out that a proposal to restrict the personal use of drones to certain public places and immediately above someone's personal property, had a fatal flaw. With current camera technology, a drone hovering 400 feet above an individual's backyard would be able to cast a surveillance net over an entire neighborhood. 

"I don't think anybody on the council wants a weaponized drone over the City of Berkeley," Gordon Wosniak stated. On the other hand, he said: "I see lots of uses for drones in public spaces—like detecting wildfires." Comparing drones to cell phones, Wozniak seconded the proposal that drones could be used to document "violations of proper [police] procedures or violations of [citizens'] civil liberties. We should probably encourage that, not ban it." 

Wosniak then offered a "serendipitous" example from the Franco-Prussian war during which, the besieged citizens of Paris were able to restore their mail service through the use of hot air balloons and carrier pigeons. 

Despite the risk of that local skies might soon be filled with hundreds of whining, whirring spy-drones (devices that could eventually be equipped with concussion grenades, tasers and teargas), Wosniak insisted that all new technology was to be welcomed because, we never know what wonderful new uses may result. "We don't know what the technology can do. It has potential for maybe some use we don't want but it has potential for some uses we can't imagine right now. It is like banning hot air balloons. It wouldn't make any sense." 

After listening to the public's critiques, Wozniak dismissed these concerns as moot, arguing that, since "no city department has asked for a drone, a ban is not appropriate at this point." 

The mayor agreed that the resolution was unnecessary since the BPD "has no plans to purchase drones." Therefore, the only concern would be privacy issues arising from the public's use of drones. 

"[T]he main concern I have is the civil liberties issue, the privacy issue," he continued. "I don't know how you deal with that, given the beliefs of the private sector.... I don't think you can possibly regulate effectively the use of this technology to say you can't spy on people because they have the technology to go up in the air and they probably have the technology to do this spying.... So it is kind of like sticking our head in the mud to say we can't use this technology." On the other hand, Bates reflected, "There is no way to stop it and control it once it gets up in the air." 

The mayor's reassurance about the police department's lack of interest in purchasing drones was immediately undercut by Councilmember Laurie Capitelli who countered that he could see drones having "real uses by the police and fire departments." 

"The real question is can we develop protocols and guidelines that protect the civil liberties of the citizens of Berkeley? And if we can't do that, then I don't think we can go forward," Capitelli said. 

The mayor summed up the City's response thusly: "We won't take any action. It will be incumbent on us to come back with something in the regular Council meeting." 

While the public's Input was characterized by well-documented concerns and deeply felt personal fears, the response of the city's leaders struck many as a disappointing mixture of timidity and technophilia. Instead of proceeding with the same historic initiative that once lead Berkeley to declare itself a "Nuclear Free Zone," the council decided to do nothing more than dither. The issue was too complex, it was argued. No decisions could be made without more information. Much more information. 

Meanwhile, while Berkeley's leadership debates, delays and dithers, the FAA's 2015 deadline for approving the release of tens of thousands of unregulated drone aircraft into America's urban airspace continues to draw ever closer. 

" I never wanted a two-year moratorium on drones, like some other cities now have," Meola told The Planet. "But that would be better than nothing. As long as Berkeley does nothing, the drones will fill the air and we will have to regulate them after they are here. We should regulate them now, before they are everywhere in Berkeley. Berkeley should do SOMETHING now." 

[*Full disclosure: The author is a co-founder of Environmentalists Against War and was a participant in the event reported above.] 

Corrections on the No Drone Zone Report, 5/5/14 

The Planet has received a note from Berkeley Peace and Justice Commissioner Bob Meola: 

"Thank you for the Berkeley Daily Planet article. I learned of it when Nick Mottern, [of] in New York, wrote to me that: 'I've read several articles about the drone action last week; I thought the one in the Daily Planet was the best.'" 


There was one major point of confusion. While the Peace and Justice Commission (PJC) and the Police Review Commission (PRC) submitted a 19-page joint report to the Council, it turns out that the PJC and the PRC had written two different versions of a proposed resolution. 

"Although the PRC copied the PJC WHEREASES," Meola points out, "the RESOLVED clause is very different." 

In contrast to the PRC resolution, Meola writes, the PJC's resolution "bans all drones, including commercial ones." 

Because the speaker's backs were to the reporter when they were addressing the Council, an important statement was misattributed. It was Michael Sherman of the PRC who responded that his commission "did not take a stand on the personal use of drones." 

This statement was incorrectly assigned to Meola. In fact, Meola clarifies, the Peace and Justice Commission's resolution goes further and "bans all drones, including commercial drones." 

And, the author apologizes for misspelling Wozniak.