Public Safety Drone Use: Policy & Legal Challenges

As drones become increasingly popular and affordable, their public safety applications make them an attractive option for law enforcement as well as fire and rescue agencies. From search and rescue tracking, to monitoring the hazardous release of chemicals, to aerial anti-crime patrols to accident scene reconstruction, public safety agencies around the country are exploring the many uses that these relatively low cost drones can support. Their application, however, comes with public policy challenges, as legislators and public safety officials attempt to balance the real and perceived societal and safety benefits with the protection of an individual’s civil liberties and privacy rights.

As with most matters of public policy, there is a wide variance of public opinion on the issue of drones, complicating the construction of quality policy and governance. For example, in a recent Reuters/Ipsos poll, respondents widely supported drones use for law enforcement purposes.[1],[2] Of the sampled group, 68% of respondents supported police officers flying drones to solve crimes, and 62% supported using them to deter crime.[3] Such numbers indicate that the majority of the American public supports public safety drones use. However, as policy specifics enter the matrix, such as the type and length of usage allowable, as well as questions regarding oversight and accountability, the results reveal a much more finicky public opinion. According to a 2013 Monmouth University poll, the overwhelming majority of respondents (83%) supported the idea of using UAVs to help with search and rescue missions, only 21% supported using them to monitor traffic enforcement laws and issue speeding tickets.[4] More than three quarters of all Americans polled (76%) favored judicial oversight, noting that law enforcement agencies should be required to obtain a warrant from a judge before using drones, while only 14% stated that law enforcement agencies should be able to unilaterally determine when to use them.[5] Interestingly, fewer than half (44%) of those surveyed stated that they were confident that their local police departments would use drones appropriately, while 51% were not.[6] Overall, and especially important from a civil liberties and privacy perspective, the Monmouth University Poll revealed that most Americans raised privacy concerns regarding the routine employment of drones by law enforcement agencies.[7]

The state of the law on the issue of unmanned surveillance tracks the public’s privacy concerns. Indeed, the legal debate surrounding the use of UAVs by law enforcement agencies is focused primarily on the lack of procedural safeguards to adequately protect the Fourth Amendment rights of those individuals made the subject of surveillance.[8] It is the very attributes that make UAVs attractive to law enforcement — their discrete size, surveillance capabilities and cost effectiveness — that also render them susceptible to this abuse, allowing law enforcement officers to potentially exert a “nearly limitless expansion of police power”.[9] The United States Supreme Court’s opinions applicable to this issue reveal an attempt to adhere to the plain language of the Fourth Amendment as well as to the intent of the Framers of the Constitution while, at the same time, recognizing the ever-evolving technological landscape of the country.[10] And, this dichotomy between the proper protection of an individual’s Fourth Amendment rights and the specific guiding policies that should define public safety drone use only intensifies when acknowledging that not all states have enacted legislation allowing the use of drones and when further noting the complete absence of a cohesive federal standard.

Either consistent state-by-state legislation is needed, or an overarching federal framework, either of which particularly applies to the use of drones by law enforcement agencies.

Using the understanding of current public opinion, coupled with past legal precedent on the matter, it is reasonable to assume that some version of a state-by-state or a federal framework would address the following general areas: (1) activity, in that drone use would only be allowable pursuant to a warrant or court order meeting specified requirements under applicable law, or in an emergency situation that meets a certain threshold;[11] (2) collection and use, in that such must be consistent a legally authorized purpose;[12] (3) information retention, which should be constrained to a maximum of 180 days unless otherwise authorized by applicable law;[13],[14] and (4) dissemination, which would ensure compliance with relevant Privacy Act and related regulations unless otherwise permitted by law.[15] [16] And, the guidelines adopted must be continuously restructured in order to keep pace with applicable statutory law, jurisprudence and public opinion. As drone usage by government agencies becomes more ubiquitous, the lack of a cohesive framework governing proper usage while protecting individuals’ Fourth Amendment rights cannot persist.

[1] Alwyn Scott, “Americans OK With Police Drones — Private Ownership, Not So Much: Poll,” February 5, 2015, http://www.reuters.com/article/2015/02/05/us-usa-drones-poll-idUSKBN0L91EE20150205. Accessed February 25, 2015.

[2] Ibid. (The Reuters/Ipsos poll was an online survey of 2,405 American adults, and has a credibility interval of plus or minus 2.3 percentage points).

[3] Ibid.

[4] Monmouth University, “National: U.S. Supports Unarmed Domestic Drones. But Public Prefers Requiring Court Orders First,” Opinion Poll, Monmouth University Polling Institute, Monmouth University, West Long Beach: Monmouth University, 2013.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Andrew B. Talai, “Drones and Jones: The Fourth Amendment and Police Discretion in the Digital Age,” California Law Review, Vol. 102, Iss. 3, Art. 4 (June 1, 2014): 729, 731.

[9] Chris Schlag, “The New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights,” University of Pittsburgh Journal of Technology Law and Policy, Vol. 13:1 (Spring 2013): 6, 12; Talai, “Drones and Jones: The Fourth Amendment and Police Discretion in the Digital Age,” 734–35, 737; Hillary B. Farber, “Eyes in the Sky: Constitutional and Regulatory Approaches to Domestic Drone Deployment,” Syracuse Law Review, Vol. 64:1 (2014): 7.

[10] See generally United States v. Jones, 132 S. Ct. 945 (2012).

[11] Drone Aircraft Privacy and Transparency Act of 2013, HR1262, 113th Cong. (2013).

[12] President Barack Obama, Presidential Memorandum Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems, Presidential Memorandum, Office of the Press Secretary, The White House, Washington, DC: Executive Office of the President of the United States, 2015.

[13] Ibid.

[14] An Act to amend title 5, United States Code, by adding a section 552a, to safeguard individual privacy from the misuse of Federal records, to provide that individuals be granted access to records concerning them which are maintained by Federal agencies, to establish a Privacy Protection Study Commission, and for other purposes, Pub. L. No. 93–579, as codified at 5 U.S.C. 552a (1974).

[15] President Barack Obama, Presidential Memorandum Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems, Presidential Memorandum, Office of the Press Secretary, The White House, Washington, DC: Executive Office of the President of the United States, 2015.

[16] An Act to amend title 5, United States Code, by adding a section 552a, to safeguard individual privacy from the misuse of Federal records, to provide that individuals be granted access to records concerning them which are maintained by Federal agencies, to establish a Privacy Protection Study Commission, and for other purposes, Pub. L. No. 93–579, as codified at 5 U.S.C. 552a (1974).

This article was co-written by two authors from The White Hat Syndicate, a Medium account launched on October 26 that publishes thought-provoking articles about cutting-edge homeland security topics. The six authors come from a diverse array of professional and personal backgrounds: legal, fire, environmental health, federal transportation security, and law enforcement. The two authors for this piece are:

1. Greggory J. Favre, MS is a Captain with the St. Louis Fire Department and an executive member of the FBI’s Joint Terrorism Task Force. Assigned to the Fire Chief’s Command Staff, he responsible for homeland security, special operations, and strategic planning initiatives across multiple bureaus. You can follow him on Twitter: @GreggFavre
2. The co-author is an attorney working in a major metropolitan American city who focuses on public safety-related law.

Conclusions and opinions within this essay are provided for educational and informational purposes only and do not constitute legal advice. Opinions expressed within are solely those of the authors, and do not reflect the official policy of their employer, professional associations, the United State Naval Postgraduate School, the Department of Defense or the U.S. Government. Materials cited are current at the time of document creation, but should in no way be taken as an indication of future results. They are offered only for general informational and educational purposes. The model identified in this document provides recommended foundational elements for a UAV policy, based on the authors’ interpretation and understanding of current legal precedent and public opinion. Any policy construction for a specific state or agency should be in accordance with the specific state or local laws.