BI: Drones and Aerial Surveillance



Drones and Aerial Surveillance: Considerations for Legislators

By Gregory McNeal, November 2014.

The looming prospect of expanded use of unmanned aerial vehicles, colloquially known as drones, has raised understandable concerns for lawmakers.  Those concerns have led some to call for legislation mandating that nearly all uses of drones be prohibited unless the government has first obtained a warrant. Privacy advocates have mounted a lobbying campaign that has succeeded in convincing thirteen states to enact laws regulating the use of drones by law enforcement, with eleven of those thirteen states requiring a warrant before the government may use a drone.  The campaigns mounted by privacy advocates oftentimes make a compelling case about the threat of pervasive surveillance, but the legislation is rarely tailored in such a way to prevent the harm that advocates fear. In fact, in every state where legislation was passed, the new laws are focused on the technology (drones) not the harm (pervasive surveillance). In many cases, this technology centric approach creates perverse results, allowing the use of extremely sophisticated pervasive surveillance technologies from manned aircraft, while disallowing benign uses of drones for mundane tasks like accident and crime scene documentation, or monitoring of industrial pollution and other environmental harms.

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.

While warrants are appealing to privacy advocates, the enactment of overly broad restrictions on drone use can curtail non-invasive, beneficial uses of drones. Legislators should reject a warrant-based, technology centric approach as it is unworkable and counterproductive. Instead, legislators should follow a property rights centric approach, coupled with limits on persistent surveillance, data retention procedures, transparency and accountability measures and a recognition of the possibility that technology may make unmanned aerial surveillance more protective of privacy than manned surveillance.  This paper makes five core recommendations:

  1. Legislators should follow a property rights approach to aerial surveillance.This approach provides landowners with the right to exclude aircraft, persons, and other objects from a column of airspace extending from the surface of their land up to 350 feet above ground level. Such an approach may solve most public and private harms associated with drones.
  2. Legislators should craft simple, duration-based surveillance legislation that will limit the aggregate amount of time the government may surveil a specific individual. Such legislation can address the potential harm of persistent surveillance, a harm that is capable of being committed by manned and unmanned aircraft.
  3. Legislators should adopt data retention procedures that require heightened levels of suspicion and increased procedural protections for accessing stored data gathered by aerial surveillance. After a legislatively determined period of time, all stored data should be deleted.
  4. Legislators should enact transparency and accountability measures, requiring government agencies to publish on a regular basis information about the use of aerial surveillance devices (both manned and unmanned).
  5. Legislators should recognize that technology such as geofencing and auto-redaction, may make aerial surveillance by drones more protective of privacy than human surveillance.

For complete paper, see Gregory McNeal, Drones and Aerial Surveillance: Considerations for Legislators, The Brookings Institution, November 2014.

(Emphasis added, citations removed)