The first drone-related legislation appeared in 2013 in Florida, Idaho, Montana, Oregon, North Carolina, Tennessee, Virginia, and Texas. In 2014, Wisconsin, Illinois, Indiana, Utah, and Iowa also passed laws seeking to address the use of drones by law enforcement. As of the writing of this paper, the California legislature passed a drone-related bill that was vetoed by the governor, but the bill’s sponsors have vowed to revisit the issue in the next legislative session. These legislative efforts have been aimed at restricting the government’s use of drone technology, while largely allowing the government to conduct identical surveillance when not using drone technology. This absurd anachronism is intentional, as privacy advocates have explicitly chosen to capitalize on the public interest and attention associated with the demonization of drone technology as a way to achieve legislative victories. These advocates are admittedly not focused on more sensible legislation that addresses harms irrespective of the technology used.
Privacy advocates contend that with drones, the government will be able to engage in widespread pervasive surveillance because drones are cheaper to operate than their manned counterparts. While drones are cheaper to operate, the drones most law enforcement agencies can afford are currently far less capable than their manned counterparts (oftentimes these drones are small remote controlled helicopters or airplanes, capable of a flight time of less than one hour). The surveillance equipment that can be placed on these drones is also far less intrusive than that which can be mounted to manned aircraft. Moreover, the term “unmanned aircraft” is also misleading as there are no systems currently available to law enforcement that can conduct fully autonomous operations, all systems need an operator for part of the mission. Thus, in almost all instances drones are less capable than manned aerial surveillance platforms, and while the platform is cheaper (but less capable), the personnel costs still remain constant as an officer is required to operate the drone. Granted, there are very sophisticated systems used by the military, but even if law enforcement agencies were able to afford the highly sophisticated multi-million dollar Predator and Reaper systems like those used for surveillance on battlefields, those systems (both the aircraft and the ground control station) are more expensive than manned helicopters, require a ground crew to launch and recover the aircraft, and require both a pilot and a camera operator. In light of these facts, the legislation being pushed by privacy advocates has been explicitly directed at drone technology, not because the technology represents an actual threat to civil liberties, but because someday in the future, the technology may be intrusive.
To counter the threat of surveillance, privacy advocates have focused solely on requiring warrants before the use of drones by law enforcement. Such a mandate oftentimes will result in the grounding of drone technology in circumstances where law enforcement use of drones would be beneficial and largely non-controversial. For example, in light of the Boston Marathon bombing, police may want to fly a drone above a marathon to ensure the safety of the public. Under many bills, police would not be allowed to use a drone unless they had a warrant, premised upon probable cause to believe a crime had been or was about to be committed. This requirement exceeds current Fourth Amendment protections with regard to the reasonableness of observing activities in public places. What this means is that the police would need to put together a warrant application with sufficient facts to prove to a judge that they had probable cause. That application would need to define with particularity the place to be searched or the persons to be surveilled. All of this would be required to observe people gathered in a public place, merely because the observation was taking place from a drone, rather than from an officer on a rooftop or in a helicopter. In a circumstance like a marathon, this probable cause showing will be difficult for the police to satisfy. After all, if the police knew who in the crowd was a potential bomber, they would arrest those individuals. Rather, a marathon is the type of event where the police would want to use a drone to monitor for unknown attackers, and in the unfortunate event of an attack, use the footage to identify the perpetrators. This is precisely the type of circumstance where the use of drone could be helpful, but unfortunately it has been outlawed in many states. To make matters worse, this type of drone surveillance would pose little to no harms to privacy. A marathon is a highly public event, the event is televised, it takes place on streets where there are surveillance cameras and spectators are photographing the event. Moreover, in the states where drones have been banned (unless accompanied by a warrant), the police have not been prohibited from using any other type of surveillance equipment — just drones. This technology centric approach has done little to protect privacy, but will certainly harm public safety, depriving law enforcement of a tool that they could use to protect people.