Should America Be Worried About Police Drones?

Source: Thinkstock

In June 2014, fans gathered outside the Staples Center in Los Angeles to celebrate the L.A. Kings’ win against the New York Rangers in the Stanley Cup Final. Spirits were high and cheers as deafening, as you’d expect with high-spirited hockey fans basking in victory. A small white drone flew over the crowd, hovering high above — and then, the air was filled with more than just cheers. Shoes, shirts, cans, and cups were being thrown at the small aircraft until eventually, it was knocked into the crowd, which cheered in celebration.

There are times when technology develops in such bursts of implication and application that it catches up with our favorite science fiction books. Drone technology as it’s changed over the course of the last decade is one such case, especially as it applies to law enforcement. There are a number of words that describe practical and conceptual drone uses in today’s society: groundbreaking, amazing, and terrifying are just a few.

Drones, or unmanned aerial vehicles (UAVs), as they are often referred to, have been igniting and complicating legal questions about privacy and law enforcement boundaries for years now. Concerns stem from privacy considerations, in part an extension of anxieties more generally brought on by Edward Snowden’s disclosures, and in part a response to new and changing technology that brings along an accompanying set of problems. The need to regulate and limit police and federal power, and the need to make safety considerations for equipment use have become hot topics surrounding UAV technology.

National Versus State Legislation

There have been efforts to enact uniform boundaries on UAV use in Congress, but successful legislation on a national level has been limited, apart from a Federal Aviation Administration mandate to allow drone use in domestic air zones. There are limited rules available from the FAA and currently the FAA and Obama Administration are collaborating on new national rules, which have yet to be decided in full.

Reps. Ted Poe (R-Texas) and Zoe Lofgren (D-California) introduced H.R. 637, the Preserving American Privacy Act, which would have required law enforcement agencies to obtain warrants for UAV utilization.

The bill would also have required transparency for the sake of accountability, and would have disallowed the attachment of a firearm to any drone, while also making clear exceptions for specific emergency situations — all items that many states have gone on to pass. But efforts to pass legislation at the national level have been unsuccessful for the most part, Poe and Lofgren’s bill included. This means that, as with many other issues today, the responsibility falls on the shoulders of the states.

Allie Bohm, an advocacy and policy strategist with the American Civil Liberties Union, told Wall St. Cheat Sheet that while there are distinct disadvantages to a state-by-state approach, in ways, it’s not all bad. “I think it’s necessary that it’s going state by state. … And I think the state legislation is incredibly important,” she said, explaining that this is in part because it demonstrates to Congress that “you can put in place reasonable privacy protections for domestic surveillance drone use and still do effective law enforcement.”

“In a perfect world, I’m sure many drone operators and law enforcement agencies would like to have national rules, because it makes it easier — you’ve got one rule wherever you are. It also means that the rules apply to federal law enforcement,” said Bohm, referring to the FBI and other federal enforcement agencies that would be subject to restrictions, as well. “That said, we also sort of live in this reality where Congress is not moving on drone legislation right now and … my understanding is that we’re not really expecting it to move, so into that void steps the states.”

Bohm notes that while the first such bills states passed were “extraordinarily protective,” they also left major loopholes that could be easily taken advantage of. “Only two of the first bills that became law required a warrant for law enforcement to get information collected by a third-party drone, so it’s a huge gaping loophole. You can’t fly your own drone, but when Amazon’s got its drone, you can just go to Amazon and say, ‘Hey Amazon, I hear you were in this neighborhood, can you maybe turn over your records?’”

Part of this appears to be an understandably limited legal background to draw on, one that can be remedied as time progresses. “This year, Illinois actually went back and fixed their drone law, so you can tell that people are thinking about it,” she said. At present, the Illinois bill — SB2937, an amendment to the Drone Surveillance Act previously passed in both houses of the state congress — has been sent to the governor, according to the general assembly. It expands the rules governing drones to include information gathered from voluntarily relinquished information from a third party. Other states have not taken such precautions, likely in part because current drone use is rare enough not to make its need clear yet. That is likely to change.

The Federal Aviation Administration

One bill Congress has managed to pass regarding UAVs requires the Federal Aviation Administration to allow use of drones in domestic airspace. The FAA is also currently working on rules for commercial drone use, and four companies have been given permission to utilize drones as of December, including Trimble Navigation Limited, VDOS Global, Clayco Inc., and Woolpert Inc..

This order is one that has placed that much more immediacy on the need for regulatory framework at all levels, and it demands a safety framework from the FAA. An audit released June 26 showed that the FAA is currently woefully unprepared and behind schedule on enacting the oversight that Congress has demanded of it.

“FAA is not effectively managing its oversight of UAS (Unmanned Aircraft Systems) operations. Although FAA established a UAS Integration Office, it has not clarified lines of reporting or established clear guidance for UAS regional inspectors or authorizing and overseeing UAS operations,” said the report. It lists items the FAA has failed to accomplish so far, including creating standards for technology to “detect and avoid other aircraft,” regulatory framework for bringing UAS into the present system — for example, certification requirements — and safety and risk data analysis.

Source: FAA

State and federal legislative bodies have work to do in developing how drones should best be put to use. An online poll from Reuters/Ipsos showed a high level of public concern, with 73% saying they believe regulation is necessary to control the use both publicly and privately, and 42% even arguing that private drone use should be prevented for the sake of privacy, with only “officials or experts” given permission to fly UAVs. An average of a series of objective polls done both online and by phone, and considered by region, urban or rural, and other factors, would be useful additions to the study. But the fact remains the same. There are concerns about personal use of drones.

However there are privacy, regulatory, and legal concerns that come with “official” use of drones as well. FAA and law enforcement agencies have their own vital and highly practical questions to answer in understanding how UAVs can best be put to use. With a 2015 deadline looming and many 2014 requirements reported as being implemented late, it’s unlikely that many necessary steps will be completed on schedule.

Part of developing guidelines and restrictions for drone technology is actually learning to use the technology, understanding public response to it, and figuring out practical applications for it. Policy must protect against future capabilities with privacy interests kept in mind, but law enforcement is charged with the task of seeing how UAVs function today. This means testing, experimenting, and training, and it inevitably means successes and failures of equipment and PR.

Los Angeles Police Department

The LAPD’s program draws particular attention to public receptivity of drones, and the importance of that balance. Going back to the example of L.A. Kings fans outside the Staples Center, some in the crowd believed the drone was owned by the police department, which the LAPD Media and Community Affairs Group told Wall St. Cheat Sheet is not the case: “The drone found at the hockey game was NOT LAPD’s, the owner of that drone has not come forward to claim it.”

The aggressive reaction to the device may have been fueled by the emotion already present in the excited crowd, in combination with misled suspicions. For many, police drones conjure the image of an Orwellian police state, and as a result, police departments must balance function with public reception. “I will not sacrifice public support for a piece of police equipment,” said L.A. Chief of Police Charlie Beck in a statement.

Source: Electronic Frontier Foundation

North Little Rock Police Department (Arkansas)

Capt. Leonard Montgomery, the professional development division commander in the North Little Rock Police Department, was candid about the changes to the department’s drone program, which started in 2008. “The main way it’s changed is [that] we’ve actually discontinued the program as of the first of the year,” said Montgomery. “After testing the aircraft since 2008, we’ve basically determined that unmanned aircraft would be a very valuable tool for law enforcement. However, based on the criteria we had set for establishing reliability and the safety of the aircraft, we decided that the Rotomotion SR30″ — a 23-pound, gasoline-powered aircraft with a 6-foot rotor blade – “is not something we want to fly inside the city. It’s just too unreliable.”

The department may think the program is too unreliable in part due to the accidents that have occurred during test flights: two crashes and one “hard landing,” according to Montgomery. All took place outside of city limits, though the Arkansas legal director for the ACLU, Holly Dickson, did point out that one such crash was close to the Remington Arms plant, where munitions manufacturing takes place. “They had to be X number of miles from an airport and there’s an airport in North Little Rock, as well as one in Little Rock, so I can only imagine that that was a factor in going to that location,” she said. “Privacy is obviously a concern as well, but safety cannot be forgotten either. … Obviously technology is not perfect, so even the best-laid plans of mice and men and every step taken … they can be doing everything right and the equipment’s going to fail at some point.”

Montgomery noted that apart from a few questions from the ACLU and the Electronic Frontier Foundation, there had been very little public concern with the program while it was still active. Rebecca Jeschke, the media relations director with EFF, said that while the group’s drone team had not looked into North Little Rock’s drone program specifically, “We would encourage very strict and specific procedures and guidelines that have been robustly reviewed by the public, with strong privacy policies about collecting and storing data.”

Montgomery explained that while other police departments have seen public backlash against drone programs for privacy reasons, there isn’t “a problem here in North Little Rock,” where Montgomery says safety has been more of priority in the past. “We first started putting surveillance cameras up in a downtown part of town … Once we put those things in in the downtown area — primarily in the business areas — we had the citizens requesting us to put cameras in the neighborhoods” in order to mitigate problems there, as well. “We have a pretty good relationship with our citizens,” he said, claiming that “there’s no real difference from privacy issues using an unmanned aircraft versus using a full-scale aircraft because they’re both flying in the same airspace.”

A full-scale aircraft does differ from some of the more modern drones available in that flight time and capabilities are vastly different, and convenience, ease, and affordability of use change drastically. While the 2008 Rotomotion SR30 may have been bulky and gasoline-powered, Montgomery said the force is looking at smaller, 4- to 6-pound aircraft that would be electrically powered and likely limited to 25- to 30-minute flights. No timeline is currently set for such a purchase, and there isn’t funding presently available for it, he said, adding that the earliest the program might be back is in a year.

“In 2008, it was us, Houston, and Miami,” said Montgomery, adding that other programs were not getting much airtime. “We were pretty much the only ones flying under FAA authority for a lot of years. … And being cutting edge like that, sometimes you choose the wrong path.” Should the department reopen its program in future, he said North Little Rock would narrow its uses. Testing indicated that better applications would include missing person searches, looking for suspects who are on foot, flood and tornado damage assessment, and fire flyovers to check for hotspots.

Said Dickson of North Little Rock’s program: “I think it’s fair to say that they have evolved and matured in terms of how they view the equipment, so, when he [says] that they’ve narrowed the scope, I’d suspect that’s probably absolutely true.” She emphasized the need for bills to be passed at the state level, explaining that while some were created in 2013, they did not pass through the general assembly; 2014, meanwhile, has been a fiscal session. Dickson added that while Arkansas tends to be strong legally in regards to privacy, with limits placed on certain surveillance technology such as red-light cameras, “we just don’t see it with respect to this sort of technology yet.”

Arlington Police Department (Texas)

Sgt. Jeffrey Houston of Arlington PD can also attest to the challenges a new program poses. The area’s drone program began about three years ago. However, Arlington’s program is still newly operational, only really getting up and running approximately a year ago, according to Houston. “We’ve spent a long time getting our certificate of authorization from the FAA. We were the first … urban city to get one with complex airspace, so we had a lot of challenges with that,” said Houston. “The majority of the time we’ve had the program, we haven’t been operational to fly.” Now that the department is ready to be up in the air, he says they’re being careful with flights because “privacy is important to us as it is to the community.”

As for drone concerns brought up with the department, Houston says they’ve been restricted to town halls, where the department has discussed how drone technology is used by the police and, “more importantly,” how it is not used. “They’re not for routine patrol, we don’t use them for surveillance, we don’t just go up looking to see what we can see, we don’t use them for car chases where they’re going over great distances. We only use them for specific missions in a very confined area. We’ve had two times we’ve used it so far, so we’re very cautious with the use of it,” he said.

One of the two times was a traffic fatality in which the drone was used in order to provide officers with an aerial view of the crash scene. “The other time was an active shooter,” said Houston. “His girlfriend had a new boyfriend he didn’t appreciate, and he came out and killed him in the parking lot and went back into his apartment. And when officers arrived he started shooting at them. So we used it there to get an idea of where he was so we could get our officers to safe positions.”

The drone, a battery-powered, 11-pound device, was purchased three years ago, and Houston says the Arlington Police Department is constantly considering what technology options are out there. “We also want to get the value for what we already purchased … [it’s] a matter of the right time and the right cost before we would even present anything up our chain of command and to our city council,” he said. Arlington is an example of how police programs may eventually improve and strengthen their drone abilities given time, funding, and the right experience.

Drone use and the politics surrounding the devices go far beyond police forces, and concerns go far beyond the borders of the United States. Police in Tijuana, Mexico, have started using drones to patrol neighborhoods there. In terms of military and intelligence applications abroad, the applications are well known and highly controversial when it comes to weaponization — however, that’s an entirely new political tangle.

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