Drones and Aerial Surveillance — Considerations For Legislators

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.3 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 areno 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.

The domestic use of drones by law enforcement is a popular topic following passage of the FAA Modernization and Reform Act of 2012. The act directed that the FAA must integrate unmanned aircraft systems — drones — into the national airspace by September of 2015. A number of organizations have expressed concern over the possibility that thousands of drones will be crowding the skies, some armed with sophisticated cameras. The ACLU, for example, has been quite vocal in its criticism releasing a report that sets out their concerns over the prospect of intrusive aerial surveillance without proper safeguards. While a robust public debate over the use of domestic drones is warranted, the conclusion that widespread privacy violations are imminent is premature.

While the FAA Modernization and Reform Act seeks the integration of unmanned aircraft into U.S. airspace by September 30, 2015, most of the provisions dealing with unmanned aircraft create a broad framework under which the FAA can explore the uses and feasibility of integration of this new technology. The key sections of the law direct the Secretary of Transportation and the Administrator of the FAA to draft plans, standards, and rules to ensure that drone integration proceeds in a safe and legal manner. In short, this is a public process where civil liberties and privacy groups will no doubt have a voice in crafting rules, and that voice seems to be at least as effective as the industry association’s voice. What is left out of the process is what state and local governments will do with the technology, and that is the primary focus of this paper.

In Conclusion

The emergence of unmanned aerial vehicles in domestic skies raises understandable privacy concerns that require careful and sometimes creative solutions. The smartest and most effective solution is to adopt a property- rights approach that does not disrupt the status quo. Such an approach, coupled with time-based prohibitions on persistent surveillance, transparency, and data retention procedures will create the most effective and clear legislative package.

Legislators should reject alarmist calls that suggest we are on the verge of an Orwellian police state.73 In 1985, the ACLU argued in an amicus brief filed in California v. Ciraolo that police observation from an airplane was “invasive modern technology” and upholding the search of Ciraolo’s yard would “alter society’s very concept of privacy.” Later, in 1988, the ACLU argued in Florida v. Riley that allowing police surveillance by helicopter was “Orwellian” and “would expose all Americans, their homes and effects, to highly intrusive snooping by government agents…” In a different context in 2004 (before the advent of the iPhone) police in Boston were going to use Blackberry phones to access public databases (the equivalent of Googling). Privacy advocates decried the use of these handheld phones as “mass scrutiny

of the lives and activities of innocent people,” and “a violation of the core democratic principle that the government should not be permitted to violate a person’s privacy, unless it has a reason to believe that he or she is involved in wrongdoing.”74 Reactionary claims such as these get the public’s attention and are easy to make, but have the predicted harms come true? Is the sky truly falling? We should be careful to not craft hasty legislation based on emotionally charged rhetoric.

Outright bans on the use of drones and broadly worded warrant requirements that function as the equivalent of an outright ban do little to protect privacy or public safety and in some instances will only serve to protect criminal wrongdoing. Legislators should instead enact legislation that maintains

the current balance between legitimate surveillance and individuals’ privacy rights. The best way to achieve that goal is to follow a property- centric approach, coupled with limits on pervasive surveillance, enhanced transparency measures, and data protection procedures.

1. For a lengthier discussion of these issues and an expanded analysis of the legal concepts discussed in this policy paper, See, Gregory S. McNeal, “Domestic Drones and the Future of Aerial Surveillance” available at: http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2498116
2. For a summary and analysis of the legislation, see Michael L. Smith, Regulating Law Enforcement’s Use of Drones: The Need For State Legislation available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2492374.
3. FL. STAT. § 934.50 (2013), IDAHO CODE ANN. § 21–213 (2013), MONT. CODE ANN. § 46–5–109 (2013), OR. REV. STAT. § 837.310 et. seq. (2013), 2013 N.C. Sess. Laws. 1040, TENN. CODE ANN. § 39–13–609 (2013), TEXAS GOV. CODE ANN. § 423.002 (2013), 2013 Va. Acts 1408.
4. WIS. STAT. § 175.55 (2014), 725 ILL. COMP. STAT. 167/10 et seq. (2014), IND. CODE § 35–33–5–9 (2014), UTAH CODE ANN. § 63G-18–103 (2014), IOWA CODE ANN. §§ 321.492B, 808.15 (2014).
5. AB 1327: Unmanned Aircraft Systems California Legislative Information (August 22, 2014) http://leginfo.legislature.ca.gov/faces/billNavClient. xhtml?bill_id=201320140AB1327
6. “The Rise of Domestic Drones” Radio Times With Mary Moss-Coane, at 42:20 http://whyy.org/cms/radiotimes/2014/08/25/the-rise-of-domestic- drones/ (ACLU advocate stating “Ideally we would like to see broad legislation that covers all surveillance technologies, whether it is GPS, or phone tracking, or what have you. But if you go to state legislatures — and we have our lobbyists in state legislatures — and try and put forth a very very broad surveillance bill like that right now, it’s not going to go anywhere. We are fighting a large scale war here against surveillance and privacy and right now we have an opportunity to get in place some rules around drones because there is so much public interest and fascination with drones. And so we are pushing forward on that front.”).
7. See generally, “The Rise of Domestic Drones” Radio Times With Mary Moss- Coane, at 42:20 http://whyy.org/cms/radiotimes/2014/08/25/the-rise-of- domestic-drones/
8. 476 U.S. 207 (1986).
9. Id.
10. Joshua Dressler, Understanding Criminal Procedure: Volume 1: Investigation, p.88 — 89, citing Ciraolo.
11. 476 U.S. 207, 214 — 15
12. 488 U.S. 445 (1989)
13. United States v. Causby, 328 U.S. 256 (1946).
14. Id.
15. Id.
16. Id.
17. Id.
18. See Troy A. Rule, Airspace In An Age Of Drones, 95 Boston University Law Review__ (forthcoming 2015), 12 available at: http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2482567, citing Stuart S. Ball, The Vertical Extent of Ownership in Land, 76 U. Pa. L. Rev 631 (1928), and Black’s Law Dictionary 453 (4th ed. 1968) noting that the full maxim reads “cujus est solum, ejus est usque ad coelum et ad inferos.”
19. Troy A. Rule, Airspace In An Age Of Drones, 12.
20. United States v. Causby, 328 U.S. 256 (1946).
21. 328 U.S. 256, 264.
22. Id. at 265.
23. Id. at 264 — 266.
24. While 500 feet is a useful rule of thumb for defining navigable versus non-navigable airspace, regulations governing navigable airspace are actually a bit more complex. Helicopters for example are exempted from minimum altitude regulations “if the operation is conducted without hazard to persons or property on the surface.” § 91.119(d). For fixed wing aircraft the rule is that over congested areas, the minimum altitude is 1000 feet above the highest obstacle within a horizontal radius of 2000 feet of the aircraft. § 91.119(b). For non-congested areas other than over open water or sparsely populated areas, the minimum is 500 feet. § 91.119(c). Over open water and sparsely populated areas, “the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.” See 14 C.F.R. § 91.119(b) — (c) (2012). Moreover, within certain distances of certain classes of airports and airspace altitude restrictions below 500 feet may also be in place.
25. California v. Ciraolo, 476 U.S. 207, 213 (1986).
26. Of course if such observations became frequent occurrences, legislatures could develop rules to govern such conduct.
27. Florida v. Riley, 488 U.S. 445 (1989).
28. Florida v. Riley, 488 U.S. 445, 462 — 463.
29. Troy A. Rule, Airspace In An Age Of Drones, 20.
30. See, “NYPD Helicopter Views Faces From Miles Away,” Wired, http://www. wired.com/2008/06/nypd-helicopter/ (explaining how an NYPD helicopter “s flying over the skies of Manhattan allowing police to see and recognize a face from two miles away, peer inside a building from three to four miles away, and track a suspect car from 12 miles away.”).
31. Notably, FAA regulations don’t clearly answer this question as the minimum altitude varies based on how congested an area is.
32. See, 14 C.F.R. § 91.119 which reads: Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes: (a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft. (c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure. (d) Helicopters, powered parachutes, and weight-shift- control aircraft. If the operation is conducted without hazard to persons or property on the surface — (1) A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA (emphasis added)
33. Troy A. Rule, Airspace In An Age Of Drones, 29.
34. Troy A. Rule, Airspace In An Age Of Drones, 27.
35. Id. at 34 (making a similar argument, noting “state legislatures could… enact new laws that gave landowners clear rights to exclude drones or other aircraft from entering into the low-altitude airspace above their land up to the existing navigable airspace line…”).
36. Causby 264 — 265.
37. See, “Kanye West Is Totally Right To Worry About Paparazzi Drones” http://www.slate.com/blogs/future_tense/2014/08/07/kanye_west_fears_ paparazzi_drones_that_s_totally_reasonable.html (noting West’s stated concerns [as recorded in a deposition] about drones “Wouldn’t you like to just teach your daughter how to swim without a drone flying? What happens if a drone falls right next to her? Would it electrocute her?” As for how that could happen, Kanye says, “Could it fall and hit her if that paparazzi doesn’t understand how to remote control the drone over their house?”). Limiting flights above private property, or property that is otherwise not accessible to the public could similarly prohibit flights like the reported drone flight above an LAPD impound lot that was otherwise obscured from view by a 16 foot wall, See “Don’t Fly Camera Equipped Drones Over Our Police Station, LAPD Says” http://arstechnica.com/tech-policy/2014/08/dont-fly-camera- equipped-drones-over-our-police-stations-lapd-says/ (noting police stating, “What concerns us is that they are filming over private property and it’s gated –you’re looking at the layout of the police station, how we operate, personnel license plates,” police Lt. Michael Ling said. “It’s kind of like if it was your house, if they’re flying over your backyard you’d start asking questions about it.”).
38. For a contrary approach that extends the right to the public navigable airspace line, see Troy A. Rule, Airspace In An Age Of Drones, 35. ( “To preserve a level of privacy and safety comparable to what landowners enjoyed prior to the drones era, laws clarifying landowner airspace rights should define these rights as extending all the way up to the navigable airspace line of 500 feet above ground in most locations. A rule defining exclusion rights as covering only 100 feet or 200 feet above the ground would arguably be insufficient because it would allow small drones to cheaply hover above land and violate landowners’ privacy or threaten their safety from those altitudes…Because navigable airspace designations can vary by location, the exact heights of each parcel’s exclusion rights could initially be established based on the FAA’s existing navigable airspace designations.”).
39. See, Interpretation of the Special Rule For Model Aircraft, available at: , See also, FAA Fact Sheet Unmanned Aircraft Systems, http://www.faa.gov/ news/fact_sheets/news_story.cfm?newsId=14153 (stating “Recreational use of airspace by model aircraft is covered by FAA Advisory Circular 91 — 57, which generally limits operations to below http://www.regulations. gov/#!documentDetail;D=FAA-2014–0396–0001 400 feet above ground level and away from airports and air traffic.”).
40. To address the threat of pervasive surveillance whereby law enforcement might park a drone or other aircraft over a landowner’s property for extended periods of time, See Recommendation 2.
41. States may need to update their trespass laws to address aerial trespass. For example, many jurisdictions define trespass as “entering on” or “remaining on” property, legislatures may need to clarify that property includes airspace.
42. This is adapted in part from Slobogin at p.24.
43. To see the perils of a process riddled with exceptions, consider the bill passed by the Texas legislature which has no fewer than 22 exceptions for drone use with carve outs for agricultural interests, electrical companies, oil companies, real estate brokers and others). See HB 912, available at: http:// www.legis.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=HB912
44. See, Executive Order — Making Open and Machine Readable the New Default for Government Information http://www.whitehouse.gov/the-press- office/2013/05/09/executive-order-making-open-and-machine-readable- new-default-government-
45. See https://twitter.com/HelicopterNoise; https://www.whatdotheyknow. com/request/issue_of_police_helicopter_fligh
46. See http://www.parliament.uk/edm/2012-13/394 (proposed legislation to regulate/reduce the amount of noise pollution caused by nighttime police helicopter flyovers in London).
47. Not all activity is published. The Cleveland (UK) Police Department’s website indicates that: “This page is intended to provide basic information to the general public regarding the work of the police helicopter and will be updated on a daily basis. Weekend and public holiday updates will appear on the next working day. Please note that not all items are always listed due to operational sensitivity or ongoing investigation.” http://www.cleveland.police. uk/news/helicopter-watch.aspx
48. http://www.islingtongazette.co.uk/news/environment/police_helicopter_ twitter_account_stops_islington_complaints_1_1206725
49. http://helihub.com/2012/09/03/uks-suffolk-police-helicopter-unit-now- on-twitter/
50. For example, the “Preserving Freedom from Unwarranted Surveillance Act of 2012.”
51. Perhaps a Parrot A.R. drone from the local mall’s Brookstone store, or a DJI Phantom bought on-line.
52. 476 U.S. 207 (1986).
53. Alameda County Sheriff’s Office, General Order 615 available at: http:// nomby.files.wordpress.com/2013/02/small-unmanned-aircraft-system- general-order-6–15-draft.pdf
54. Paul Detrick, “Cops with Drones: Alameda Co. CA Weighs Technology vs. Privacy” available at: http://reason.com/reasontv/2013/04/04/cops-with- drones-technology-vs-privacy
55. “Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft,” American Civil Liberties Union, December 2011, p. 16.
56. For example, the “Preserving American Privacy Act of 2013” in Section 3119c creates a general prohibition on the use of covered information as “evidence against an individual in any trial, hearing, or other proceeding…” While the Act provides a set of exceptions, including one for emergencies, the language of the emergency exception as currently drafted does not clearly specify that inadvertent discovery of information unrelated to the emergency justifying the drone usage would be admissible, and it’s likely that defense counsel in such a case would seek to prohibit the admission of evidence in such a case by relying on the lack of a clearly specified exception.
57. Id.
58. Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 364 — 365 (1998).
59. Hudson v. Michigan, 547 U.S. 586, 591 (2006).
60. Herring v. United States, 129 S. Ct. 695, 700 (2009).
61. This is consistent with the Supreme Court’s approach to Fourth Amendment violations per United States v. Calandra, 414 U.S. 338 (1974). (noting that allowing “a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury’s duties, and extending the rule to grand jury proceedings would achieve only a speculative and minimal advance in deterring police misconduct at the expense of substantially impeding the grand jury’s role.”).
62. This is consistent with Congress’ guidance in Federal Rule of Criminal Procedure 5.1(e) which states in relevant part “At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired”.
63. See 18 U.S.C. 3142(f) noting the “rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing.”
64. Contra James v. Illinois, 493 U.S. 307 (1990).
65. 468 U.S. 897 (1984).
66. 468 U.S. 981 (1984).
67. 487 U.S. 533 (1988).
68. 467 U.S. 431 (1984).
69. Note, Nix was a Sixth Amendment case but courts have applied the fruits analysis to searches.
70. Nardone v. United States, 308 U.S. 338 (1939) and Wong Sun v. United States 371 U.S. 471 (1963) respectively.
71. See, Brown v. Illinois, 422 U.S. 590, 604 (1975).
72. Christopher Slobogin, “Making the Most of United States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory,” Duke Journal of Constitutional Law & Public Policy (forthcoming) available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2098002.
73. Interestingly, Orwell seems to be a favorite citation for the ACLU who has cited him nearly 70 times in briefs.
74. See Gregory S. McNeal, “Can The ‘Drone’ Industry Compete With The Privacy Lobby?” available at: http://www.forbes.com/sites/ gregorymcneal/2012/08/13/can-the-drone-industry-compete-with-the- privacy-lobby/