States Seek Legal Limits on Domestic Drones

Ready or not, the drones are coming home: Nine law enforcement agencies in six states already use drones, and another nine have applied to the Federal Aviation Administration for permission to do the same.
by | February 22, 2013

Ready or not, the drones are coming home: Nine law enforcement agencies in six states already use drones, and another nine have applied to the Federal Aviation Administration for permission to do the same. So far, police agencies have not used drones for general surveillance, but lawmakers in nearly half the states are looking to enhance privacy protections before drones become standard policing.

Most state legislators don’t object to the military use of drones overseas, and they are largely at peace with university researchers or farmers using them here to spray crops or deliver animal feed. But they cringe at the possibility that domestic police forces will violate people’s privacy by using them in regular policing.

At least 21 states are debating bills to limit drone use, according to the American Civil Liberties Union. The proposals range from requiring police to obtain a search warrant before using a drone, to placing a moratorium on any drone use by law enforcement. And last week, a bipartisan group of U.S. House members introduced a bill that would require a warrant for drone use in criminal investigations.

In Florida, where law enforcement agencies in Orlando and Miami already use drones, state lawmakers are eager to set limits before the fledgling domestic drone industry grows in economic and political clout.

“It’s not a speculative thing,” says Republican state Senator Joe Negron, whose bill would require law enforcement officers to obtain a search warrant before using a drone. “The whole industry is waiting to take off and (drone manufacturers) are looking at law enforcement agencies as customers.” Without laws in place, says Negron, every police department in the state could be using the relatively low-cost drones, which run about $65,000 each, for surveillance.

North Dakota state Representative Rick Becker, a Republican, proposed legislation requiring a warrant for law enforcement use of drones after a conversation with a sheriff who wanted to be able to use drones to gather evidence to obtain a warrant.

“We’re not technophobic and I think drones can be employed for our benefit,” says Becker, “but we can’t forget our privacy rights.”

Concern over drones spans the political spectrum. In Virginia, where the General Assembly earlier this month overwhelmingly approved a two-year moratorium on any drone use by law enforcement, the ACLU of Virginia teamed up with one of the state’s most conservative Republican lawmakers to craft the legislation. The moratorium also won support from the Virginia Tea Party Patriots Federation.

“Our founders had no conception of things that would fly over them at night and peer into their backyards and send signals back to a home base,” said Virginia state Senator A. Donald McEachin, a Democrat, in an interview with the Associated Press.

So far, few law enforcement agencies are buying small and stealthy drones that could be used to secretly spy on civilians. Instead, most police drones are like Miami-Dade County’s Honeywell T-Hawk drone, which is about the size of an office garbage can and is powered by a fan as loud as a leaf-blower.  The police could use a drone like the T-Hawk to spy, but it is far more effective for tasks such as surveying damage after a powerful storm, or aiding in the search for a missing person.

After the earthquake that devastated central Japan in 2011, Japanese officials used T-Hawk drones to assess damage to the Fukushima Daiichi nuclear power plant, since it was too dangerous for humans to be exposed to such high levels of radiation.

Public Fear

Surveys suggest citizens have serious worries about police drones. More than 60 percent said they would be concerned about their personal privacy if U.S. law enforcement officers began using unmanned drones with high tech cameras, according to a poll conducted last year by Monmouth University Polling Institute.

That concern is already having public policy consequences. Earlier this month, the city council in Charlottesville, Va., voted 3-2 to become the first city in the country to pass an anti-drone resolution. The resolution, which is non-binding, calls for “legislation prohibiting information obtained from the domestic use of drones from being introduced into a Federal or State court.” Three days later, Seattle Mayor Mike McGinn agreed to send the city’s two police drones back to the manufacturer after months of opposition from citizens groups backed by the Occupy movement and the ACLU.

At a Florida committee hearing that same week, Orlando-area sheriff’s Captain Mike Fewless asked for an allowance for police to use drones for crowd surveillance at large events, like bowl games or large political rallies. The answer was a resounding “no”, and Negron, the sponsor of legislation requiring a warrant for drone use, said he would vote against his own bill if crowd surveillance were allowed.

“Can you imagine,” asks Negron, “if King George had been able to use drones during the Boston Tea Party?”

Since 9/11, police have increasingly used military equipment, such as armored vehicles, M-16 rifles and military helicopters with little public objection. Some departments now routinely serve arrest warrants with SWAT teams. But no policing tactic has engendered as much controversy and fear as deploying domestic drones.

“We are seeing the controversy with weaponized drones at the international level,” says David Cortright, professor of peace studies at Notre Dame University, “so these vehicles are seen in a more menacing context than a police helicopter. I don’t think there’s any chance that police would use these (drones) to fire on people, but that fear is in people’s minds.”

However, as the technology has expanded, the public has tacitly accepted some drone use. Last month, when five-year-old Ethan Gilman was kidnapped from a school bus in southeastern Alabama and held hostage in a bunker, the FBI used drones to keep watch on the scene. There was almost no public discomfort with drone use in that situation, says Amie Stepanovich, associate litigation counsel at the Electronic Privacy Information Center.

At least 80 percent of respondents to the Monmouth University poll said they support the use of drones to help with search and rescue missions.

On the other hand, when reports surfaced on February 10 that law enforcement agencies were hunting fugitive ex-Los Angeles police officer Christopher Dorner with armed drones, (the Los Angeles Police Department and the U.S. Customs and Border Patrol denied the reports), critics protested that it would set a dangerous precedent to use a weaponized drone to kill an American on U.S. soil.

Ryan Calo, a law professor at the University of Washington, argues that drone fears might be a catalyst for strengthening privacy laws that could help in other technological arenas, such as tracking people’s Internet browsing. Drones “represent the cold, technological embodiment of observation,” Calo says.

Drone Reality

Many in the law enforcement community argue that the privacy fears surrounding drones are unfounded. “There are a lot of misconceptions about the UAV (unmanned aerial vehicle),” says Andrew Cohen, a sergeant with the Miami-Dade County police department aviation unit. “We drive it to the scene, use it, then take it down,” says Cohen, describing the department’s use of the T-Hawk drone. “We’re not allowed to fly it from the airport and no one is flying it from a remote location. We have to be able to see the drone in our line of sight.”

Cohen compared the department’s use of a drone in a hostage situation to peeking over a fence. “This is just another tool for us to use,” says Cohen, “so that if we have someone locked in their house and we’re worried about bringing in a helicopter with two guys because they might get shot down, we can bring in this thing instead.”

But many state lawmakers aren’t convinced.

“This is a proactive move that starts out with saying that we support privacy,” says state Senator Paul Schumacher of Nebraska, a Republican who is sponsoring a bill that would require police to obtain a warrant before using a drone. “We are setting a standard so that we don’t have police departments making large investments in the technology and then the public starts to get upset.”

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