CRS: Satellite surveillance raises privacy questions

Congress might want to evaluate whether the Homeland Security Department's plan to use domestic spy satellites for counterterrorism and law enforcement is worth the cost and the risks to privacy, according to a new report from the Congressional Research Service.

Whether satellite surveillance for such purposes constitutes an unlawful search that violates the Fourth Amendment rights of U.S. citizens is likely to depend on the specific technologies, techniques and intelligence involved, the report concluded.

"The circumstances under which satellite surveillance constitutes a search and, if so, whether it is reasonable may depend on what information is collected from where, and how the collection is accomplished," the CRS report added.

The 29-page report outlines issues that Congress might wish to consider as it reviews the department's creation of a National Applications Office to use domestic government satellites for counterterrorism and law enforcement.

Although government satellite imagery has been used for mapping, weather reporting, disaster response and other domestic needs for decades, the Bush administration in May 2007 delegated authority over use of such imagery for law enforcement and homeland security to the new applications office at DHS.

However, key lawmakers in Congress were not informed until months later.

"The transfer occurred ? apparently without notification of key congressional oversight committees," the CRS report said. As a result, opening of the office has been delayed while Congress considers the ramifications.

The possibility of using government spy satellites to support law enforcement and homeland security missions has raised serious concerns among lawmakers and individuals about civil rights, privacy and Fourth Amendment protection against unlawful searches and seizures.

The report reviewed court decisions allowing police, for example, to take aerial photos from a helicopter of marijuana plants in the back yard of a home as evidence of criminal activity. It suggested that the specific imagery and communications technologies and techniques used along with the intelligence collected may determine whether the activity constitutes a search under the Fourth Amendment.

The CRS report authors, Richard Best Jr., a specialist in national defense, and Jennifer Elsea, a legislative attorney, suggested that Congress examine the additional value offered by satellite imagery to homeland security and law enforcement, given the expected costs and risks of the new program. Congress also ought to determine whether appropriate oversight mechanisms are in place, CRS said.

The report suggested examining possible impacts on national security and traditional mapping and weather-related missions if the satellites are diverted for homeland security.

Satellite communications and intelligence activities are a major source of federal contracting activity, and expansion of those programs into homeland security and law enforcement is likely to lead to greater contracting support. Information was not immediately available on the proposed budget for the National Applications Office for fiscal 2009 and beyond.