Drones, or unmanned aerial vehicles (UAV) may have only come into the common lexicon in the last few years, but they are rapidly becoming a major concern for the public and law enforcement. Previously, the idea of drones was left to science-fiction movies, but the potential uses of a drone have expanded well beyond the mysterious as released military videos have proven the incredible surveillance and even attack capabilities of these UAV’s.
Armed civilian aircraft have been posted to Youtube and immediately garnered the attention of Federal and local authorities, but what about a simple aerial surveillance platform? More and more civilian drones are entering the airspace and the potential for privacy violations or compromised law enforcement missions is growing.
The New Threat of Drones
Drones have come into the spotlight during the wars in Afghanistan and Iraq. The ability of American armed forces to utilize unmanned aerial craft to spy on enemy movements and positions, and in some cases launch offensive attacks, has been incredibly beneficial. Several Youtube videos have made this incredible technology even more real for the viewing public. Who knew that the cheap remote-control airplanes and helicopters of the 1970’s would turn into a remarkable military asset in the 21st Century.
The military drones are highly sophisticated pieces of machinery ranging in sizes from hand-held to medium-sized aircraft. These drones are equipped with GPS guidance systems, advanced live-video streaming, IR and night vision optical targeting systems, payload capacities, and even require highly trained soldiers to fly them.
Civilian Drones and Law Enforcement
Civilian-owned drones have gained wide-spread popularity in the last few years. The numbers of drones entering the airspace is more than some would care to admit. The aircraft can provide entertainment and amazing aerial photography platforms, but can also create unique problems and dangers as well. Where does entertainment and the drone airways end, and privacy rights begin?
The Federal Aviation Administration (FAA) has ruled that United States airspace begins at 400 feet, and the agency does not regulate activities below that level. This allows citizens to operate remote-controlled aircraft, rockets, kites, etc. without worrying about government restrictions. However, the FAA does regulate ANY commercial aircraft regardless of where it is operating in the airspace. So if the drone is operating in ANY commercial format, the flight is regulated by FAA. This would include drone flights for television stations, or commercial Youtube posters.
My Department’s Public Information Officer (PIO) has always enjoyed remote-controlled aircraft and used to fly a mini-helicopter around our atrium at night or on weekends. When drones came on the market he bought one for around $400. Most of us just laughed at his boyish hobby, but when he attached a Go-Pro camera and started showing us the pictures and videos he was making, our perceptions changed immediately.DJI Phantom 4
Suddenly the potential good and bad of aerial drones became abundantly clear. A drone could be used to spy on lawful police actions and provide real-time intelligence to bad guys, the media, or other sources. On the other hand, a drone could be used to gather intelligence for lawful police actions like no other source had been able to provide in the past. Putting aside the viable recreational uses of drones, let’s examine the good and bad uses of drones in regards to law enforcement.
The Potential Good Use of Drones
- Gather intelligence on suspected drug or crime locations, unavailable through other means
- (Be mindful that flying over a suspect location would require a search warrant, but pictures and video obtained while flying over the street – public space – may not require a search warrant)
- Monitor parades, races, and other high-volume public venues
- Provide unique and powerful crime scene or crash scene photography or video
- Give real-time intelligence during field searches
- Allow smaller agencies aerial observation previously only available through helicopters.
The Potential Bad Use of Drones
- Flying over Police parking lots and gathering information on officer’s private vehicles
- Being used to give live feed of active critical incident situations for media
- Following officers in private vehicles to residences
- Filming law enforcement tactics during training exercises
- Flying over police officers private residences
- Invading private citizens privacy at home or in public.
Drone Over Armed Hostage Taker Incident
St. Joseph, Missouri Police responded to an armed barricaded hostage taker call in October, 2015 at a hotel adjacent to I-29. As negotiations were deteriorating a multi-jurisdictional SWAT team prepared for an emergency entry only to find their maneuvers were being recorded by a drone being operated for a local television station. This allowed the hostage taker to simply turn on the news and see what police were doing.
The Incident Command had contacted the FAA and obtained a closed air space in a 5-mile radius of the hotel, but the small drone was hovering only about 100 yards off the ground over the parking lot. It was technically being operated by a private citizen, but one whom had already made arrangements to be paid by the television station for his drone video (making it a commercial flight).
However, you can imagine the dangerous situation this drone placed not only officers, but the hostage inside the hotel room. The hostage taker simply had to turn on the television to get live-feed video of what the police were doing outside. In the end the man released the woman, but shot it out with police. The situation could have gone much worse simply because the drone allowed the bad guy to know what was going on.
Drone Over Los Angeles Police Station
On August 1, 2014, known police antagonist and videographer Daniel Saulmon flew a civilian drone over the LAPD Hollywood Division parking lot. As you can see the drone flew below 100 feet at times, allowing for clear identification of police officer personal vehicles, license plate numbers, and any other personal information only viewable from the air.
Saulmon was operating the drone from the sidewalk in an obvious attempt to get LAPD to confront him. Officers, including a Lieutenant and Sergeant, did confront him, but ultimately did not arrest because the law was unclear. Saulmon was on the public sidewalk, but his drone was clearly in the LAPD airspace.
Federal Aviation Administration (FAA) Assistance
The FAA has avoided regulating the airspace for hobby aircraft at the direction of Congress. This is not bad, and as there are many hobbyists using the under 400 feet airspace I do not support a tighter restriction. However, I do believe that airspace above residences and businesses should be regulated. The FAA may not need to be the lead in this regulation, rather simply have the local jurisdictions include this space as protected under trespassing laws.
Since the FAA has already made the under 400 feet ceiling a “hands-off” area (except around airports and busy locations), then having local jurisdictions regulate that area would not conflict with any Federal vs. State authority (10th Amendment). Just as a business, residence, and even public government buildings can post “No Trespassing” signs and have them enforced, the local jurisdictions could simply apply trespassing to the air space above a person’s property. This could include any photography, video, recording, or other permanent or semi-permanent invasion of that protected space.
Provisions could be made to allow law enforcement to conduct surveillance and observations using drones, as long as those uses comply with all other Federal, State, and Local law provisions. Outside of that law enforcement would still need to obtain a search warrant per 4th Amendment requirements.
What goes from being a hobby to an invasion of privacy has not been clearly defined in law for drone use. However, I firmly believe that the vast majority of Americans would feel violated if a drone was flying over their backyard, or over the street, and video taping into their house or other private areas. Just because the drone is not physically touching property, most Americans expect to be free from intrusion in the airspace around their private areas.
Think about this – you have a swimming pool in your backyard. You have built a large privacy fence around the pool that deliberately blocks view from neighbors. However, now a neighbor flies a drone above the fence, maybe even over your yard. Your wife and daughter are sunbathing, maybe even without a bikini strap attached. Is this kind of activity something you want to be worried about while enjoying your pool?
In law enforcement there is a constant tug-of-war between being a public agency, but needing certain aspects to remain private. Freedom of Information acts (FOI) or Sunshine Laws provide citizens an opportunity to view most of the documents of public agencies, however there are always restrictions to protect innocent civilians privacy rights as well. Law enforcement training and tactics have typically been held by courts to be outside of public domain unless necessary to determine if they violate a Constitutional right. This only comes out when a particular complainant comes forward.
I believe drones are here to stay. I see a very valid use for them in law enforcement, and private use. However, I think that law enforcement officers and agencies should retain some privacy in certain matters, and laws should allow the prohibition of drone use around law enforcement properties and actions in some regards. At the same time, I believe private use of drones should be protected, as long as the flight and any recordings or transmissions do not violate other’s privacy rights.
In my next article I will present a possible option to defeat unmanned aerial vehicles if they pose a threat to public safety or law enforcement missions.
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