Few Privacy Limitations Exist on How Police Use Drones

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.

“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.

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.”