EFFECTIVE POLICIES FOR DRONE USE BY POLICE AGENCIES 1

Exploring Effective Policies and Regulations for Use of Drones by Police and Safety Agencies

Lester G. Parrish

University of Wisconsin Stout

Professor Reynaldo Villar

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Abstract

The discussion as to whether or not to introduce Unmanned Aerial Vehicles (UAVs) within the

law enforcement community has not come without some consternation. On the one hand, they

can be a valuable tool in certain situations for constabulary who are seeking to ensure the safety

of their officers and the civilian population over which they have jurisdiction to protect. On the

opposite side of the debate comes the legalities of using drones, a term by which they are more

commonly known, and what hazards might be introduced or whether infringement of privacy

laws are occurring with their use. Regardless, 38 states have introduced and 16 have passed

some form of legislation regarding these vehicles (National Conference of State Legislatures,

2016). With the tide not appearing to stem, it is important that proper regulations be established

to ensure not only safety and security but also freedom from any violation of individual civil

rights.

Keywords: drones, Unmanned Aerial Vehicle (UAV), Unmanned Aerial System (UAS),

law enforcement, legislation

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Exploring Effective Policies and Regulations for Use of Drones by Police and Safety Agencies

Introduction

In recent years, unmanned aerial vehicles (UAVs), more commonly known as drones,

have proven to be effective for military use, providing reconnaissance and missile strike

capabilities. While the latter would obviously not be an option for use within the United States,

the former certainly would. In fact, in many situations where the situation is uncertain, drones

could be the perfect tool to deploy and give law enforcement an opportunity to possibly better

understand the situation in which they were entering and possibly plan a more successful

strategy. There are, however, possible legal implications of drone usage which need to be

addressed before drones can be deployed without creating a huge public outcry.

With that said, it is important to understand the implications that UAVs bring to the table

as well. What, if any, negative aspects could they bring and how do we avoid those

circumstances. It is clear that laws and regulations are needed to not only protect the civilian

population but to provide guidance and protection for law enforcement as well. The question is,

just how stringent do those laws need to be to provide the best production while still allowing for

flexibility within the law enforcement community?

Currently, At least 38 states have considered legislation related to UAS in the 2016

legislative session and 17 have passed some form of legislation regarding civilian drone use

(National Conference of State Legislatures, 2016). This legislation, however, does not cover law

enforcement use. This is important because, as of 2013, law enforcement agencies in 16 states

have either applied for the Federal Aviation Administration's drone authorization program or are

known to have borrowed Customs and Border Protection drones for missions (Governing.com,

2013). And yet, there are few if any rules, federal or otherwise, outlining their use especially for
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municipal law enforcement agencies. As it stands now, and with current laws in place guarding

privacy, agencies desiring to use drones would need to obtain a warrant at almost any time they

desire to use drones which would negate their effectiveness in a fast-changing environment such

as a riot, hostage situation or other similar uprising. One can certainly see both sides of the

argument but is more legislation and regulation the answer to solve the issue?

Discussion

It should be noted that In the 1980s the Supreme Court ruled that the Fourth Amendment

does not categorically prohibit the government from carrying out warrantless aerial surveillance

of private property (Jaccard, 2014) though it is uncertain if they had drones in mind at the time

of that decision. It would be nave at best to think that decision would be grounds for limitless

use of drones since todays technology far exceeds that of even the expectations, much less the

capabilities of, the 1980s. Moreover, much of the public knowledge regarding drone usage

comes from their military applications which tends to be more destructive than surveilling. As

such, many civil rights advocates tend to use that to their advantage when they push for

regulations that would limit their use (McNeal, 2014). This tends to leave a one-sided argument

which is certainly not in favor of law enforcement. Further, it takes away from the usefulness of

drones in areas where privacy is overridden by the need to maintain law and order or where lives

might be saved by using their resources.

As already mentioned, aerial surveillance was addressed in 1980, perhaps not with the

current environment in mind but it was discussed. What is at question now is whether unmanned

aerial surveillance, and the technologies they can deploy, would constitute a need for stricter

laws to be enacted. Because of their size and capabilities, some drones are able to survey more

effectively than are manned aircraft. They can hover and remain in place as needed with very
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little fear of detection if operated correctly. Their remote capability allows the operator to

remain at a safe distance while still allowing a view of the area being investigated. They have

the ability to provide greatly improved audio and video than ever before. This leaves the

possibility of obtaining more and better information than would normally be available to one

observing from a similar manned aircraft or even a person stationed in the vicinity conducting

normal surveillance. While not addressing this issue head on, the Supreme Court did, somewhat,

provide some insight in a 1998 ruling which suggests that at least some warrantless surveillance

of the inside of a home from an aerial vantage point may be constitutional (Nagy, 2014). While

the 1998 law covered the use of aircraft, I am doubtful that it had the foresight of including

UAVs as a possible vantage point though the outcomes are very similar and, in fact, the major

difference lies in the unmanned operation.

One means of making a determination as to whether the United States might need such

laws is to take a look at the international community, more particularly, the United Nations (UN),

and the stance they have taken or considered when addressing similar issues. As early as 2006,

the UN used drones for surveillance with limited success and in 2013, MONUSCO, the UNs

stabilization mission in the Democratic Republic of the Congo established a defining moment

when the drones were considered capable of enhancing the ability of the UN to protect

civilians (Karlsrud & Rosn, 2013). The UNs position is certainly a strong argument for

drone/UAV use in other civilian protective operations where they could aid in preventing the loss

of life and provide a safer advantage for law enforcement.

This capability provided to the UN, and ultimately any government entity, does, however,

create a sensitivity among UN member states to all forms of information gathering, including

aerial surveillance. As a result, peacekeeping missions have been slow to adopt new technology
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(Karlsrud & Rosn, 2013). This concern resulted in the formation of the UNs Joint Mission

Analysis Cell (JMAC) to help dissuade such concerns by better oversight and management of

drone use.

While the UNs position is an important one and gives us food for thought, theirs is not

the overarching mandate since it is an international entity. Although they have approved

drone/UAV use in their missions, is it prudent for law enforcement agencies within the United

States? Having researched various case studies, the findings are somewhat mixed based on the

equipment used and how it was deployed. One case identified that thermal imaging used on a

UAV to identify a person interior to ones dwelling required a warrant while property

observations involving a clear line of sight into the dwelling did not have any clear expectation

of privacy (Neill II, 2013, p. 357). In another case, the judge ruled that there was no improper

use of an unmanned aerial vehicle when a Border Patrol UAV was used during a confrontation

between a suspect, a SWAT team and the suspects family (Bomboy, 2014).

Some might argue that certain considerations should be given to the danger presented by

the situation. If, for example, an individual is expressing violent tendencies that could be

harmful to law enforcement officials or others in the vicinity, a greater need may be present over

trying to determine if an individual is, for instance, producing or selling narcotics. This might

perpetuate the use of thermal imaging from a UAV or similar vehicle in such cases where

individuals might be put into harms way without the information such devices could provide. At

the other end of the spectrum, others may choose to look at the law as a rigid, all-encompassing

guideline or policy and remove the exigent circumstances completely. Ultimately, privacy

concerns continue to provide the largest trepidation among citizens when it comes to UAV

deployment by local law enforcement.

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One state in particular has taken a stance and have, perhaps, provided a standard by

which legislation should be drafted and implemented. In 2015, Washington state House passed a

bill outlining and identifying the term by which unmanned aerial systems or what they consider

extraordinary sensing devices may be used as well as how the information gathered from their

observations could be used (Lillian, 2015). The result is a list of comprehensive guidelines that

spell out the basic requirements for use of a drone by state and local law enforcement agencies.

Even with these requirements in place, it is important to ensure transparency in their use and that

the agency must adopt policies and procedures specific to minimizing extraneous collection of

personal information (Rhodes, 2016, p. 925).

As one might expect, the American Civil Liberties Union (ACLU) lists domestic drones

as one of its areas of concern when it comes to personal privacy rights. Fortunately, they too

recognize that drones have many useful purposes but also have major concerns when the drones

are coupled with other technologies such as facial recognition software, infrared cameras and

devices capable of listening to and recording conversations (American Civil Liberties Union,

2016). Because of their large following and the issues they raise, any state or municipality

looking to craft legislation or guidance for drone usage would be wise to seek their advice and

input as a means to help with the transparency discussed earlier.

At the end of the day, the Fourth Amendment rights are often the most cited concern

when discussing the use of UAV surveillance. Unfortunately, the Fourth Amendment falls

woefully short in addressing any form of aerial surveillance regardless of the platform or

operational state. In various debates, the Supreme Court left open disconcerting questions for

future cases that involve electronic, as opposed to physical contact and excludes certain

surveillance practices from Fourth Amendment scrutinydespite a normative desire to regulate

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(Talai, 2014, p. 752). Now just because these questions were left open does not mean we can

ignore them. In fact, in such an area where peoples fears are identified, it would be frivolous

and impertinent to do so. While the 2012 ruling in United States vs Jones provides implications

that the Fourth Amendment provides some rights, it doesnt specify when public surveillance

becomes private nor does it delineate as to why there should be differences between

electronically collected information and that collected by simple officer surveillance (Blitz, 2013,

pp. 21-22). These are definitely two areas for consideration by legislators who are considering

guidelines for their constituency.

Results

When all is said and done, it is certainly obvious to the most casual observer that certain

guidelines are a necessity to govern the use of drones when deployed by law enforcement

officials. In todays climate, trust between the police (used generically to identify all law

enforcement entities) and many citizens and citizen groups is at a premium and we cannot do

anything that would further jeopardize it. As can be noted in Figure 1 below, as of 2015,

regulation has become a priority for many states:

Figure 1. States with UAV legislation enacted in 2015. Source: Governing.com 2016

National Conference of State Legislatures, 2016

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While this is a good start, much more needs to be done to ensure privacy advocates and

legislators work hand in hand to make the public safer while continuing to hold law enforcement

agencies accountable. Some areas that are of particular interest for inclusion are:

Identifying boundaries: an acceptable point of approach has to be identified which

delineates where drone usage leaves the public observation and becomes a private search

Information Preservation: outlining when data from the various possible media can be

collected and retained for use against a potential suspect as well as how long the data may

be retained

Legislative decisions: procedures and rules/guidelines should be the result of a

culmination of ideas from elected officials, ensuring proper vetting through the courts and

taking into account concerns of those advocating for both privacy and law enforcement

Transparency: all rules and guidelines used should be made open to the public so they

have an appropriate expectation and are aware of the capabilities outlined within their

boundaries

Uniformity: while likely one of the most challenging, it is important that federal, state

and local legislators work together to help maintain consistency within the requirements,

noting that there will be some areas where inconsistencies are necessary

Close the loopholes: ensure the wording and content does not allow for any operation

outside those activities that are both legal and intended by the rules/guidelines
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While these recommendations are not all inclusive in providing what is needed to bring

drone use into full compliance of all privacy concerns, they are a good start. While not

mentioned, it is most important that whatever rules/guidelines are developed, they must remain

fluid. By allowing that adaptability, they will be easier to modify should the need arise which, if

history is any indicator, will certainly occur. This will assist those tasked with future legislative

duties to amend them to maintain the goals by which they were originally designed.

Conclusion

As the information provided has shown, policies and regulations governing the use of

drones by law enforcement are a necessary evil. The obvious challenge is how to determine

what areas are allowable and what areas are out of bounds based on privacy concerns. By having

those responsible for our laws joining with those who enforce our laws and those who provide

public oversight of those entities, we are better able to work within the framework of our

Constitution and ultimately ensure the privacy of our citizens. Just as radar detection has given

way to laser and light technologies, so will manned aircraft give way to drone technology. And

rightfully so as it would not be normal for technology to remain stagnant. Our only task, and it is

a big one, is to meet the challenges head on so that all involved can most benefit from the

advantages they provide and the use of technology is not stifled by archaic rules that do not take

into account their potential.

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References

American Civil Liberties Union. (2016). Domestic Drones. Retrieved from ACLU.org:

https://www.aclu.org/issues/privacy-technology/surveillance-technologies/domestic-

drones

Blitz, M. (2013). The Fourth Amendment Future of Public Surveillance: Remote Recording and

Other Searches in Public Space. American University Law Review, 21-86.

Bomboy, S. (2014, February 7). A legal victory for drones warrants a Fourth Amendment

discussion. Retrieved from Constitution Daily:

http://blog.constitutioncenter.org/2014/02/a-court-victory-for-drones-warrants-a-fourth-

amendment-discussion/

Governing.com. (2013). Law Enforcement Agencies Using Drones List, Map . Retrieved from

Governing.com: http://www.governing.com/gov-data/safety-justice/drones-state-local-

law-enforcement-agencies-license-list.html

Jaccard, H. (2014). The Wars Come Home: Police Militarization in the United States of America.

Peace and Freedom, 6-7,23.

Karlsrud, J., & Rosn, F. (2013). In the Eye of the Beholder? UN and the Use of Drones to

Protect Civilians. Stability: International Journal of Security and Development, Art. 27.

Lillian, B. (2015, March 5). UAS Legislation Passes in Washington State House. Retrieved from

Unmanned Aerial Online: http://unmanned-aerial.com/uas-legislation-passes-in-

washington-state-house/

McNeal, G. (2014, November). Drones and Aerial Surveillance: Considerations For Legislators.

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content/uploads/2016/07/Drones_Aerial_Surveillance_McNeal_FINAL.pdf
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Nagy, B. (2014). Why They Can Watch You: Assessing The Constitutionality Of Warrantless

Unmanned Aerial Surveillance By Law Enforcement. Berkeley Technology Law Journal,

135-174.

National Conference of State Legislatures. (2016, October 7). Current Unmanned Aircraft State

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http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-

landscape.aspx

Neill II, B. (2013). Police Drones: A Legal Studies Case Study. Journal of Business Case

Studies , 353-358.

Rhodes, A. (2016). Legislating Agency Use of Umanned Aerial Vehicles in Washington State.

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Talai, A. (2014). Drones and Jones: The Fourth Amendment and Police Discretion in the Digital

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Wall, T. (2016). Ordinary Emergency: Drones, Police, and Geographies of Legal Terror.

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