By Julia Claypool, Journal of Transnational Law & Policy Articles & Notes Editor

Recent immigration reform efforts have seen heated debate in Washington, with many calling for more border security before citizenship concessions can be made. Among the varying proposals comes a push for the use of drones in reducing rates of illegal immigration along the U.S.-Mexico border.

While much talk has centered around the legality of the use of drones in war, proponents of these unmanned aerial vehicles present drone use in immigration enforcement as an efficient, harmless way to better control illegal immigration and illicit narcotics trade. They are also quick to assure the public that this surveillance technology will not be used in ways that tread upon individual privacy rights. Results at the border have certainly been mixed, but it is clear that the use of drones in the United States is increasing at an exponential rate.

Tom Barry, the lead author of a recent report on the use of drones by U.S. Customs and Border Protection, conducted by the Center for International Policy, worries about the breaking down of the distinction between domestic law enforcement and national security and foreign affairs, saying that this “line has been crisscrossed many times with [the Department of Homeland Security] DHS.”

Financially, drones seem to be more trouble then they are worth. The DHS’s Inspector General has reported that border drones were on the ground 70 percent of the time they were supposed to be flying, citing maintenance and management issues. When they were flying, drones played a role in only 0.003 percent of drug seizures and 0.001 percent of illegal border crossing detentions.

Despite these numbers, the debate over the effectiveness and use of drones doesn’t seem to be dissipating anytime soon. Florida, like many other states around the country, has already taken action in limiting the use of drones. Governor Rick Scott recently signed into law a measure that prohibits the use of surveillance drones by local or state law enforcement without judicial approval. However, exceptions are made in cases when “credible intelligence” from the DHS points to “a high risk of a terrorist attack.”

With Florida being a coastal state, illegal immigration can often take place on the water. The United States Coast Guard has already been working with the U.S. Customs and Border Protection since 2008, establishing a Joint Program Office to coordinate maritime land-based UAS [Unmanned Aircraft System] policy and operations. More recently, they have expressed interest in creating a fleet of drones for use in varying activities, including border patrol.

The recent enactment of state law may provide some assurance to those living in Florida, but with very little federal or international limitations, potential drone use in border security raises various issues.

For one, how might Florida law interact with federal law to limit drone use in “state” waters? What might be the effects of drones patrolling the territorial sea or the high seas in search of incoming immigrants? At what point does the use of surveillance drones violate the rights of foreign ships and their passengers? Additionally, what might be the impacts of invasive drone surveillance into another state’s territorial sea in the name of “border security”?

Time will most certainty raise a myriad of further questions, but for now it seems all we can do is work to develop comprehensive standards for drone use in America and abroad that respect domestic, foreign, and international law.

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