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Few Privacy Limitations Exist on How
Police Use Drones Few Privacy
Limitations Exist on How Police Use Drones

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National
Journal

Few Privacy Limitations Exist on How Police Use Drones

Only 14 states require law enforcement get a warrant to use drones for
surveillance.

By Kaveh Waddell

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An operator lands a commercial drone on July 4, 2014 in Sydney,
Australia.(Brendon Thorne/Getty
Images)

As drones become cheaper and more capable, more police departments across the
country are asking for and getting federal approval to use them for law
enforcement.

But the Federal Aviation Administration only takes safety into consideration
when it grants a law enforcement agency approval to use drones, leaving privacy
protections to legislation—which, depending on the state in question, may or may
not exist.

Agencies as large as the Michigan State Police and as small as the Grand
Forks County [N.D.] Sheriff's Department have received FAA approval to use
drones. Most departments use them for missions like search-and-rescue or for
photographing a crime scene or an accident site.

But unless a law enforcement agency is within one of the
14 states that have passed privacy legislation limiting how police can use
drones, there's little in theory keeping it from using a drone for a less
innocuous end—such as surveillance without a warrant. "While the federal
government retains responsibility for the airspace, under most circumstances a
state/local government can impose restrictions on the agencies for which it's
responsible," an FAA spokesperson said in an emailed statement.

Members in the House and Senate introduced bills in the previous Congress
that would have required police everywhere in the country to obtain a warrant
before using drones for surveillance, but the bills died at the end of the
year.

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"In the states that don't require warrants, it's pretty much a Wild West" in
terms of what's allowed, says Jay Stanley, senior policy analyst at the American
Civil Liberties Union. "There's nothing stopping a police department from using
[drones] in all kinds of ways to spy, except for the Constitution."

Within that unregulated "Wild West," police have very different approaches to
their drone programs. One of the longest-running law enforcement drone programs
is at the Mesa County Sheriff's Office in Colorado. Ben Miller, its director,
says the department has a 17-page policy that outlines when and how it can use
drones and for how long it retains data.

The department has never run a surveillance mission with its drones, Miller
says, which are generally used for search-and-rescue and crime-scene
photography. "If we had a need to look into an area where someone would have a
legitimate expectation of privacy, we'd get a warrant," he says.

Colorado is one
of the states without any legislation about drones at all, according to the
National Conference of State Legislatures, which means that the limitations on
the Mesa County drone program were instituted at the department's
prerogative.

Unlike the Mesa County Sheriff's Office, some law enforcement agencies have
been less than forthcoming with their drone programs. Last year, the San Jose
Police Department in California secretly
bought a $7,000 drone, and was faced with uproar in the community when
freedom-of-information requests brought the purchase to light six months
later.

The police department said the drone was meant for helping bomb technicians
access hard-to-reach places, but left the door open for using the drone to
address "dangers such as active shooters, hostage taking, or other such tactical
situations where lives might be in immediate danger."

And this December, the sheriff in Alameda County, Calif., revealed that
he spent $97,000 of his own department's money to buy a pair of drones after he
was barred from using federal funds to make the purchase. The sheriff told
the San Francisco Chronicle that the drone won't be used for
surveillance "in any shape, manner or form," but California, like Colorado, has
no state law that requires warrants for surveillance.

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The California state assembly passed a bill last year that would have
required police to obtain a warrant to fly drones in any event other than an
"emergency situation." But Gov. Jerry Brown vetoed
it in September, because he said the exceptions the bill allowed "appear to
be too narrow."

While advocates are worried that law enforcement could use drones in ways
that violate citizens' privacy, there's little fear that they're being abused
yet. "Safety restrictions are so strict that most police departments are still
using them in quite limited ways," the ACLU's Stanley said. "This is still an
issue of looking down the road to what we know is coming."

The technology is new enough that police groups are still grappling with its
implications and limitations. "We're doing some research right now to come up
with some model policy," said John Thompson, deputy executive director of the
National Sheriffs' Association. "We don't have a statement or opinion on it at
this point."

Miller, who runs the drone program at the sheriff's office in Mesa County,
says he often hears from other law enforcement agencies who need help getting
their drone program off the ground. But there's no formal coordination: "It's
all very word-of-mouth," he said, and suggested that others find him simply by
searching the Internet.

For the time being, privacy advocates are not focusing on fighting for
federal legislation. "For activists, it's generally easier to do things at the
local and state level," says Nadia Kayyali of the Electronic Frontier
Foundation, a privacy and free speech advocacy organization. "Any fight at the
local level is more likely to see results, but also does take a much more
significant investment in time."

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