Drones and the Fourth Amendment:  Do ‘Eyes in the Sky’ See Too Much?

Print More

Photo by arbitragery via Flickr

Can drones be useful crime-fighting tools without challenging your right to privacy?

As law enforcement and government agencies increasingly turn to sophisticated “eye-in-the sky” technology, they face a backlash from privacy advocates that could severely limit their deployment unless governments develop clear guidelines for their use, warns an article in the Hastings Law Journal.

The article, published in the journal of the Hastings College of the Law at  the University of California, proposes that state governments enact regulations requiring agencies to set strict standards on warrants obtained for deploying drones, and to set limits on how long the data they pick up can be retained.

Such regulations will go a long way towards reassuring the public that such “highly intrusive surveillance” tools will not conflict with Fourth Amendment protections from unreasonable searches, wrote Jennifer Bentley, a graduate law student at Hastings College.

Bentley wrote that public suspicion and fear surrounding the use of drones by law enforcement has already “led some municipalities to close the door on all drone use, thus denying local agencies a beneficial tool that could assist in rapidly evolving or dangerous situations.”

Drones are currently used by law enforcement for a wide and expanding number of purposes, including assisting with search and rescue operations, accident reconstruction, crime scene investigation, and providing a “bird’s eye view” in dangerous active shooter or hostage situations, Bentley wrote.

2.5 Million Drones

In 2016, the Federal Aviation Association (FAA) estimated 2.5 million drones (including those used by official agencies) were flown regularly in the U.S., with the number expected to rise to seven million by 2020.

The use of drones by private citizens has already raised hackles among law enforcement agencies.

The New York Police Department, concerned about propaganda showing that drones can be used for terror attacks, has asked for the authority to take down drones it deems a threat. Congress last year authorized federal law enforcement officials to disable a drone, including shooting it down. It would take additional federal legislation to give local law-enforcement agencies the same right.

And last December, London’s Gatwick Airport cancelled hundreds of flights as a result of drone sightings, prompting a government decision to outlaw drones within three miles  of an airport.

In her article, Bentley warned that if governments want to continue to exploit the technology, state legislatures will need to assuage citizen concerns about privacy.

According to Bentley, many privacy advocates complain that unrestricted government use of drone technology “pushes us into a surveillance society in which every move is monitored, recorded and scrutinized.”

The Los Angeles Police Department, the largest law enforcement agency in the U.S. with a drone program, already faces strong community opposition to the program over privacy concerns, Bentley noted.

Public opposition and a lobbying campaign by the local branch of the American Civil Liberties Union (ACLU) put the program on hold until guidelines were created, but community members remain concerned that law enforcement will push past the guidelines, and drones increasingly will be invasive.

Some governments have begun to restrict drone usage, but the interpretation of the constitutionality of drone usage varies among states.

One-Third of States Require Warrants for Drone Use

Currently, one-third of states require law enforcement to obtain a warrant before using a drone to conduct a search or surveillance. Other local governments completely ban the use of drones by law enforcement officials.

But, Bentley argues, “overly broad restriction on drone use have an unintended consequence in that they also curtail non-invasive, beneficial uses of drones.”

“Legislation should not merely create a blanket warrant requirement,” Bentley cautioned.

But safeguards against their misuse are crucial. She proposed guidelines for issuing warrants for deploying a drone only when there is cause to believe a crime will be committed, or during large public events. Other acceptable uses would be for assisting in search and rescue operations, or for other emergencies..

It’s also critical that data retention should be limited, Bentley wrote.

Observing that technology can progress faster than courts respond, Bentley said the issue was complicated by “noticeable absence of case law examining the constitutionality of drone surveillance,” which has allowed governments to interpret the Fourth Amendment with “inconsistent results.”

The full article, entitled “Policing the Police: Balancing the Right to Privacy Against the Beneficial Use of Drone Technology,” can be downloaded here.

Lauren Sonnenberg is a TCR news intern. Readers’ comments are welcome.

Leave a Reply

Your email address will not be published. Required fields are marked *