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Benjamin Carney

8-May-2024

Legal and Ethical Principles

Dr. Brook Dickison

The United States Air Force uses unmanned aerial systems, or drones, across the world and in the U.S. “The ethical argument for drones rests largely on their potential capacity for discrimination and the avoidance of unintended civilian harm” (Cortright, 2015, p. 7). Should the military be allowed to operate unmanned vehicles or other means of protection or deterrence for National defense within the nation’s borders?

Cortright, D., Fairhurst, R., & Wall, K. (2015a). Assessing the Debate on Drone Warfare. In Drones and the Future of Armed Conflict : Ethical, Legal, and Strategic Implications (pp. 7–7). essay, University of Chicago Press. Retrieved April 21, 2024, from https://eds-p-ebscohost-com.easydb.angelo.edu/eds/ebookviewer/ebook/bmxlYmtfXzk2NDUxMV9fQU41?sid=db3d87f6-9a0c-43a 5-bf76-8c79439fdb1a@redis&vid=1&format=EB&lpid=lp_1&rid=0.

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Military drone use in the U.S. is ever growing and plays a role in National Defense. The legality and ethics of drones in the military plays a big part on the individual operating the machinery. Once the unmanned vehicle also loses its operator, and becomes fully autonomous, then greater ethical concerns arise. An operator has the ability to make difficult ethical decisions on the spot and is held accountable to such decisions. Where and what the operator decides to do is impacted because they are not directly with the system, making their choices through a screen. In certain conditions, drones are outfitted with munitions and the stakes of mistakes are a lot greater. In this guide, the focus will be more towards reconnaissance use from military drones. This topic was chosen because the Air Force operates both manned and unmanned systems; unmanned systems are relatively new and the laws associated with them are constantly changing. In order to properly operate drones in the States, operators must fully understand the legal bounds that have been set.

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The legal agency governing drone use in the federal government is the Federal Aviation Administration (FAA). “The FAA collaborates with industry and communities to advance drone operations and integrate them into the national airspace” (FAA, 2024, para. 1). The FAA governs all drone use in the country but also create the policies the military has to abide by when operating in the U.S. The Department of Defense is required to follow the laws set and ensure the agencies below them, such as the Air Force, stays in compliance. As the Air Force is a federal agency, the laws it must abide by are federal. All personnel employed by the service are subject to appropriate accountability. Such actions may include administrative or punitive actions should laws and policy be broken. Many different groups and congressional councils are charged with holding the military and Air Force accountable as a whole.

Drones. Federal Aviation Administration. (2024). https://www.faa.gov/uas

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Federal Law:

The Fourth Amendment prohibits unreasonable searches: “The right of the people to be secure in their persons…shall not be violated, and no Warrants shall issue, but upon probable cause” (U.S. Const. amend. IV). It essentially protects citizens from the government trying to illegally search or seize but not protect them from all searches and seizures, only ones not legal.

State Law:

Texas also mimics the same protections of searches and seizures within their constitution: “The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches” (Tex. Const. art. I, § 9). These impact the topic at hand because citizens are entitled to their privacy and the question arises of whether a search is considered illegal when it occurs from the air on a citizen’s property.

Tex. Const. art. I, § 9, https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm

U.S. Const. amend. IV, https://constitution.congress.gov/constitution/amendment-4/

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Federal Statute:

“Industry stakeholders, shall develop a plan to allow for the implementation of unmanned aircraft systems traffic management (UTM) services” (49 U.S.C. §44802 (2021)). This statue requires the plan contain standards of operations such as registration and licensing, flight standards, and best methods to enhance technologies necessary for maximum safe operations. Should the military and its operators not follow the appropriate laws, they will be subject to punishment. In the case of military members, they can be held accountable to the Uniform Code of Military Justice or administrative actions.

Administrative Law:

At the state level, in Texas “law enforcement authority in Texas that uses unmanned aircraft shall comply with the Federal Aviation Administration minimum requirements” (37 Tex. Admin. Code §1.143). This law breaks down where to find FAA information covering public aircraft operations. And requires reports to the state governor of such sircraft use by the county.

37 Tex. Admin. Code §1.143, https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=37&pt=1&ch=1&rl=143

49 U.S.C. §44802 (2021), https://uscode.house.gov/view.xhtml?req=(title:49%20section:44802%20edition:prelim)

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A court case involving drones involved a farmer illegally obtaining neighbor’s cattle and a drone being used as surveillance during a standoff after police confrontation. “There was no improper use of an unmanned aerial vehicle. It appears to have had no bearing on these charges being contested here” (State of N.D. v. Brossart, 2012). Surveillance within the United States is already being conducted by law enforcement. This impacts military drone use as they are being utilized outside the U.S., although the active force does not typically operate in the states, the guard does and could potentially use drones to surveillance citizens to assist local law enforcement.

State of N.D. v. Brossart, 32-2011-CR-00047, https://www.scribd.com/document/119715885/92426499-State-of-North-Dakota-vs-Rodney-Brossart, (ND 2012)

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The Department of Defense issued guidance addressing the use of UAS for domestic mission. The use is limited to certain criteria: if it provides superior capabilities, where physical limitations prohibit manned systems, and a couple others (Secretary of Defense, 2018). This guidance essentially only allows unmanned aircraft to be used under certain conditions and not solely for convenience. Other guidance has been provided regarding military drone use in the U.S. and as time passes, more lenient guidance may following granting the military more permissions to operate within the states.

Secretary of Defense, Guidance for the Domestic Use of Unmanned Aircraft Systems in U.S. National Airspace (2018). Department of Defense. Retrieved April 22, 2024, from https://media.defense.gov/2018/Nov/05/2002059511/-1/-1/1/GUIDANCE-FOR-THE-DOMESTIC-USE-OF-UNMANNED-AIRCRAF T-SYSTEMS-IN-US-NATIONAL-AIRSPACE.PDF.

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A local policy relating to drone operations is from the Texas State Parks policy. Citizens are allowed to operate drones in certain areas of state parks, and even allows filming with drones upon request (State Parks, 2024). In the past, rules did not exist over civilian drone use, as use got more popular, laws were put in place. Similarly, the military has increased its drone use but no local policy in Texas is covering its use. More overarching state and federal policy impacts operations, this may stay the same in years to come. The local policy exists to keep state parks “natural” and as the military continues operations in the U.S. citizens may start to questions whether the military is conducting training or military operations in the U.S., changing public perception.

State Parks FAQs. Texas Parks & Wildlife Department. (2024). https://tpwd.texas.gov/state-parks/park-information/frequently-asked-questions/#technology

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Risk Management Strategies (Vicente, 2023):

Business Experiments is a risk strategy that can be used in unmanned drone operations since there are many different types. Determining the best drone to use for the military will also help determine how it can be operated and at what category. Maybe a smaller drone is more beneficial to the operations, or perhaps it's better to use a manned aircraft instead.

Theory Validation is also important to military drone operations. With the ever changing drone and legal environment, getting outside perspectives to operations can help focus the military on how it should conduct operations. After all, the military is charged with protecting its citizens and is comprised of citizens as well.

Isolating Identified Risks is necessary to manage risk associated with drone operations. To protect the nation, fully understanding drone limits and capabilities is essential. Having the knowledge of each unmanned system will allow the Air Force to conduct safe operations and best utilize the aircraft for what it was designed to do.

Vicente, V. (2023, April 28). 10 Types of Risk Management Strategies to Follow. AuditBoard. https://www.auditboard.com/blog/10-risk-management-strategies/

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The Code of Ethics military members are held to, specifically Air Force members, is our Core Values: Integrity First, Service Before Self, and Excellence in All We Do (LeMay Center, 2022). These Core Values are related to drone operations because first and foremost, we must follow the law. Operators don’t have constant supervision while they operate the aircraft, they are the commanding authority of the drone when in flight. Having integrity and being able to speak up when unsure about a mission or situation is essential for success. They require the courage to speak up for the greater good, should they be given orders that do not follow the Core Values.

LeMay Center, A Profession of Arms: Our Core Values (2022). Maxwell AFB, Alabama. Retrieved April 24, 2024, from https://www.doctrine.af.mil/Portals/61/documents/Airman_Development/BlueBook.pdf.

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I am personally connected to drone use in the military as I work logistics in the Air Force. Supplying parts to repair aircraft that may be involved in an ethically grey zone may have members conflicted. Not every base operated drones so I may not always be supplying parts to such aircraft. The application of the law was easy to make the connection to since its easy to see what missions drones are used for in the military. We have the ability to know what major operations are ongoing in the world if we are directly tied to that mission. In the case of stateside operations, those missions are mostly tied to training operations. However, I did not know the military operated as many drones within the U.S. as was expected. The previous knowledge I had over drones was their utilization overseas and outside the U.S. They are used for reconnaissance and surveillance as well as a munitions delivering capability. The regulations the military must follow within the U.S. is essentially the same as other agencies and even rules the public must follow. Additionally, the military has even more stringent and specific rules to follow than other entities. The future ethics of UAS use in the military will affect both the public and service members alike.

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Slide 11 - Recommendations and Best Practices for Compliance

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Slide 11 - Recommendations and Best Practices for Compliance

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Recommendations / Best Practices:

Follow FAA regulations, consistently review their website for updates

Ensure the Fourth Amendment is followed to prevent unreasonable searched and seizures

Article 1, Section 9 of the Texas Constitution must be obeyed, mimicking the Fourth Amendment

Develop a plan to integrate unmanned aircraft into the traffic management system according to Section 44802 of U.S.C. 49

The DoD guidance covering the specific conditions that have to be met for domestic operations to occur is laid out in the 2018 Secretary of Defense, Guidance for the Domestic Use of Unmanned Aircraft Systems memorandum

Pilots have to follow the Air Force Code of Conduct when operating aircraft and are held accountable if violated