It’s no secret that various law enforcement agencies ranging from local cops to the FBI to Customs and Border Protection (CBP) are using drones in their various missions. But information as to when, where, and how these agencies are using drones remains vastly inconsistent.

A new report (PDF) published Thursday by the Department of Justice’s Office of the Inspector General (OIG) is now recommending that the department consider a “DOJ-wide policy regarding [drone] use in areas and ways that could have significant privacy or other legal implications.”

Of course, these baby steps to formulate a policy come seven years after the FBI launched its first drones, or as the government calls them “unmanned aerial systems” (UAS). Right now, federal agencies essentially can make up their own standard operating procedures when it comes to drones and apply their own appropriate privacy policies as they see fit.

“The OIG is recognizing the privacy issues with drones, which I think is fantastic,” Jennifer Lynch, a staff attorney at the Electronic Frontier Foundation, told Ars. “The OIG has noticed that even in public spaces we could have privacy interests that should be protected. I think that's revolutionary, and the OIG should be commended for that. Hopefully because of this report, [the DOJ] will actually produce some privacy policies that have some meat to them.”

“We don’t write laws to protect against impossible things”

According to the new OIG report, some federal agencies already have their own policies in place, which offer few legal barriers to when and how drones can be used:

With regard to potential privacy concerns stemming from UAS operations, officials at both the FBI and ATF stated that they did not believe there was any practical difference between how a UAS collects evidence as compared to a manned aircraft. The FBI stated that the aerial surveillance provisions of its Domestic Investigations and Operations Guide and other aviation policies govern how agents use UAS. These guidelines require that agents request supervisory approval before conducting any aerial surveillance and comply with aviation laws and policies.

Civil libertarians and other legal experts, though, told Ars that the existing drone policy that the FBI and ATF maintain is not exactly comforting.

“The main difference is that UAS will drive down the cost of aerial surveillance quite radically, as well as permit smaller and more invasive and longer flying, or even persistent, aerial platforms for surveillance,” Peter Asaro, a drone expert and professor of media studies at the New School, told Ars. “The implications of these technological shifts are that such surveillance can be done much more readily and may even become ubiquitous. This has an obvious and definite impact on privacy, whether that surveillance is being conducted by police forces and the Department of Justice, or whether it is being conducted by private citizens and companies.”

Drones, like other types of surveillance technology including license plate readers, have effectively become de facto (and sometimes de jure) legal, even though they were unimaginable just a decade ago.

“We don’t write laws to protect against impossible things, so when the impossible becomes possible, we shouldn’t be surprised that law doesn’t protect against it,” Neil Richards, a law professor at Washington University in St. Louis, told Ars. “Law enforcement sometimes takes this absence of protection as permission, even encouragement, but nothing could be further from the truth. Rather than giving police carte blanche to use new technologies to invade privacy (and increase their own power) in novel ways, we should subject the police adoption of new technologies (especially military ones) to meaningful review with our civil liberties in mind.”

However, he posited that “legal change should be a last resort,” and that there should be far more “privacy-by-design analysis at the development stage.”

Brother, can you spare a drone?

The report also provides a vast overview on how various federal agencies are spending money on drones. From 2004 until May 2013, “DOJ law enforcement components” spent “approximately $3.7 million on small UAS,” with the FBI spending over $3 million of that total amount. The Bureau of Alcohol, Tobacco, and Firearms (ATF), by contrast, spent just $600,000; and the United States Marshals Service (USMS) spent only $75,000. The Drug Enforcement Agency “acquired UAS from another federal agency for testing at no cost.”

The DOJ has also spent over $1.2 million on drone-related grants to agencies as diverse as Eastern Kentucky University, the Sheriff’s Association of Texas, the Center for Rural Development in Kentucky, the Gadsden Police Department in Alabama, the Miami-Dade Police Department, the North Little Rock Police Department in Arkansas, and the San Mateo County Sheriff’s Department in California. (San Mateo County ultimately did not decide to buy a drone and the money was “deobligated.”)

According to the document, the DEA and USMS also said that while they have drones, “they have no plans to deploy them operationally. Specifically, the DEA stated that it plans to transfer its UAS to another federal agency, while the USMS stated that it plans to destroy its UAS because its UAS are obsolete and no longer operable.”

But Jennifer Lynch of the EFF says that’s not the whole story.

“It doesn’t mention at all the fact that DOJ entities are going to [Customs and Border Protection] to use CBP’s [Predator drones],” she told Ars. “The report says that DEA and maybe ATF had decided that they didn’t want to use drones. But we just got a list of agencies that CBP loaned their drones out to, and CBP flew 66 missions for DEA.”

The new OIG report says that “DOJ officials told us that none of their UAS are armed or carry releasable projectiles.” But again, the EFF has received documents showing that the CBP has considered it in the past, which the OIG report does not actually mention.

Most privacy law experts would agree that any new policies that the DOJ does come up with would be nothing more than a stop-gap measure at best.

“At some point, the practical barriers become so low that not even new law enforcement policies are enough,” Ryan Calo, a law professor who specializes in robotics law at the University of Washington School of Law, told Ars.

“We may need reexamine our privacy doctrines themselves, such as the idea that you have no reasonable expectation of privacy in public or from public vantage. Drones are a particularly salient example of a broader trend: cheaper, more versatile, and more powerful surveillance technology. Drones provoke a particularly visceral reaction, but it is not like robots need to fly in order to spy on people.”