For a long time, drones—unmanned aircraft—were used only by the military. Now local law enforcement wants them for police work such as surveillance and search-and-rescue missions. That in turn has sparked a fierce debate over the balance between cutting-edge law enforcement technology and the privacy rights of citizens.
In February, Reason TV covered an Alameda County, California public protection committee meeting in which Sheriff Gregory Ahern announced that he planned on using a laptop-sized drone (he prefers to call it an "unmanned aerial system") for search and rescue. "It's mission specific to search areas for lost children or elderly or Alzheimer's patients to search an area that it would be very difficult for our personnel to get to," said Sheriff Ahern.
Residents and civil liberties advocates are skeptical that drone use would remain so narrowly defined for very long. At the meeting, Linda Lye of the American Civil Liberties Union of Northern California took issue with the sheriff's submitted draft of a privacy policy. She it's not specific enough about what the sheriff can and cannot do with drones.
"If the sheriff wants a drone for search and rescue then the policy should say he can only use it for search and rescue," said Lye. "Unfortunately under his policy he can deploy a drone for search and rescue, but then use the data for untold other purposes. That is a huge loophole, it's an exception that swallows the rule."
Lye urged the public protection committee not to approve the drone until stricter safeguards were in place. She pointed out that the safeguards were important because the technology will develop very quickly—and possibly to a point where citizens don't have control of their Fourth Amendment rights against unreasonable searches and seizures. Indeed, Alameda County could serve as the baseline for police and sheriff's departments across the country, so getting it right there may affect all Americans.
The sheriff plans on applying for permission from the Federal Aviation Administration to fly aircraft above 400 feet and plans to pay for the drone with a federal grant. MuckRock.com made a Freedom of Information Act (FOIA) request for the grant made to the Department of Homeland Security in July 2012. The request revealed that Sheriff Ahern was looking to purchase a drone equipped with a something called a "Forward Looking Infrared camera." These thermal-imaging devices detect radiation given off by heat from people or animals, opening up a wide variety of concerns.
Criminal law experts such as Laurie Levenson of Loyola Law School say law enforcement hasn't been given enough legal guidance on drones yet.
"If you say we're going to use it for a manhunt, what do you call a manhunt? If you say you want to use it to find missing persons, well, how far can you go with that?" says Levenson. She says that it's a matter of drawing lines because it's just too easy to become Big Brother without them. What happens, for instance, if police capture evidence of unrelated criminal activity while searching for a lost toddler? Can they use that to trigger arrests and prosecution?
Trevor Timm of the Electronic Frontier Foundation points out that it is very hard to draw lines with police because, once police have a certain power, they never want to give it up.
"Police always seem to want to push the boundaries as far as the law will take them and sometimes over those boundaries," says Timm.
He points to law enforcement and cell phone data as an example. The New York Times reported in 2012 that law enforcement made 1.3 million demands in 2011 of phone companies for subscriber locations, text messages, and other information. Because there weren't strict privacy rules in place when mobile phones first exploded onto the market, it made it that much easier for law enforcement to obtain civilian data without search warrants or users' approval or even knowing about the requests.
"Generally there is this real friction between technology and civil liberties and we haven't really figured out how to deal with it," says Levenson. We don't know how to deal with it because technology is developing a lot faster than the law can keep up. Government cameras are everywhere these days and the laws that deal with them go back to the time of the framers of the Constitution. "What did they know about drones?" asks Levenson.
About 8 minutes.
Written and produced by Paul Detrick. Camera by Alex Manning, Zach Weissmueller, Tracy Oppenheimer, and Detrick.
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For Reason's coverage of drones, go here.