Law & the Courts

On Police Drones, Lawmakers Are Behind the Times

Autel Robotics X-Star drone flies at the Consumer Electronics Show in Las Vegas, Nev. (Reuters photo: Steve Marcus)
As more and more departments acquire the technology, governments need to set guardrails.

Drone technology has advanced dramatically in recent years, and its use by police departments has boomed as well. It’s time to talk about how these trends might play out and the threats they could pose to our privacy — and to the police — if the appropriate limits aren’t put in place.

A long-overdue debate surfaced last month when the Los Angeles Police Commission voted 3–1 to support the use of drones in high-risk and missing-person situations. The vote began a several-month-long process to establish specific guidelines for the LAPD. And this same debate is playing out across the country, because American governments’ appetite for drones has only grown with time.

Bard College’s Center for the Study of the Drone tallies 82 state and local police, sheriff, fire, and emergency departments across the country that possessed drone technology in 2015. This number rose to 167 in 2016 and 347 in April of this year. Drone-use reports at the federal level are sparse, but a FOIA request by the Electronic Frontier Foundation unearthed the fact that Customs and Border Patrol lent drones to national and local agencies over 700 times between 2010 and 2012 for “domestic surveillance.”

Current drone policies run from one extreme to the other. Presently, for example, there are no laws regulating the use of drones by federal law enforcement. (The Federal Aviation Administration has rules about flying drones commercially or for recreational use, but hasn’t created — and likely will not create — rules governing law enforcement’s use of the technology.) Meanwhile, intense public outrage led the Seattle Police Department to abandon its drone program altogether.

Slightly fewer than half of states have passed legislation addressing privacy concerns, though the protections range wildly — from warrant requirements for police surveillance (now in place in 18 states) to provisions targeting drone-assisted “peeping Toms.” Only one state, North Dakota, has passed legislation explicitly allowing police to mount anything other than a camera to a drone, though Wisconsin police once located a man using a thermal imaging.

To date, the Supreme Court has not opined specifically on drone technology, but holdings from other cases provide some insight as to how the Court will address the constitutional issues involved.

Court precedent allows police to observe individuals and private property from the air to collect the evidence necessary to obtain a warrant. In California v. Ciraolo, the Court held it was not an unlawful search for police to observe, from an altitude of 1,000 feet, the backyard of an individual they suspected of growing marijuana. Likewise, the Supreme Court did not find photographing industrial complexes with an aerial-mapping camera from navigable airspace to require a warrant in Dow Chemical Co. v. United States. Years later, the Supreme Court gave the police even more latitude, finding that the use of helicopters for surveillance at a height of 400 feet did not require a warrant. It’s easy to see how drones fit into this framework, and that the Court seems to be lowering the bar.

Also, as I mentioned in The Hill last fall when the FAA released new rules for commercial and recreational users, the Supreme Court considers how common a technology is when determining the degree to which the police threaten an individual’s “reasonable expectation of privacy” when they use it. For example, the Court found it unconstitutional for the police to use thermal imaging to scan homes for marijuana-growing operations without a warrant, primarily because thermal imaging is “not in general public use.” This implies that Americans’ privacy rights will shrink dramatically as various technologies improve and spread. In just the past decade it has become far easier to monitor individuals using everyday technology, ranging from GPS to cell-phone cameras.

Operating without clear Supreme Court guidance on drones, states have improperly managed the fissure between privacy and police safety. The Brookings Institution points out that state legislation in this area is often technology-specific, failing to account for future advancements. Police-safety advocates object that legislation limiting drone use is too sweeping.

On the first point, legislators should seek to enact a broad doctrinal approach to surveillance, not just limits on particular technologies. This keeps them from continuously having to revisit the law to curb abuses made possible by new innovations. It means limiting the scope of police surveillance, the means of police surveillance, the content police may store, and the length of time for which they may store it. Such limits prevent abuse and preserve liberty.

The police-safety advocates have a point as well: It’s possible to limit drone use too much. Eliminating drone programs entirely would unnecessarily endanger officers and increase policing costs. 

Drones force us to strike a balance among justice, privacy, and public safety.

There are articulable reasons for law enforcement to have drones. Several departments have used them in hostage situations. Others have used drones to search large areas in the wilderness for missing persons.

Less foreseeable but perhaps more valuable is the way drone surveillance can assist and protect law enforcement through hot-spot policing. As Robert VerBruggen noted in a National Review piece last month, gun violence in America is concentrated in certain areas and among certain social networks. His piece advocates policing the “hot spots”; today this is achieved mainly by placing more cops on certain beats. It’s not difficult to imagine that placing drones in these areas could be a public-safety win while decreasing officer risk. VerBruggen writes that police are already using other technologies, such as gunshot detectors, to assist them. The use of drone technology, if limited in scope, content, and duration, could augment this type of necessary police work.

Police and public-safety departments across the United States are acquiring drones at a record clip. And like many advancements in technology, drones force us to strike a balance among justice, privacy, and public safety. Without a thoughtful public debate and effective guidelines, legislators will be constantly reactive to technology, unavoidably allowing some to fall victim to privacy abuses in the gaps between advancements and legislation. Let’s create a grounded foundation for our privacy laws before more police drones take to the sky.


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