Domestic drones that can track your movement in public places are on their way to local law enforcement officials, but some state lawmakers are moving on their own to stop them.
The remote-controlled aircraft have created a buzz among privacy advocates for several years, and Rand Paul’s recent Senate filibuster made drones a trendy discussion topic.
But can local police, if they have access to their own drones, really photograph you in public, or in your backyard if someone can see your house from a public spot?
In some case, these law-enforcement drones may be able to do more than just take your picture, as the rules evolve about a technology that’s moving faster than the legal system.
To be clear, there are really three types of drone use that have raised questions: the federal government’s use of drones in national security situations, private citizens and companies using drones for domestic purposes, and state and local law enforcement using drones for official investigations.
When it comes to local law enforcement, more police departments are investigating drones as a cost-saving way to gather information and do their jobs in a safer manner. Law enforcement could use drones to follow suspects and safely handle situations under the proper circumstances. For example, FBI drones were used in a nationally televised hostage standoff in Alabama this year, to help rescue a kidnapped six-year-old boy. Also, in theory, fire departments are expected to use drones to assess dangerous conditions that would threaten fire fighters.
It’s the definition of “proper” that is up in the air when it comes to drones and local law enforcement.
One specific issue is the matter of the police obtaining a search warrant before they look into a house.
The Fourth Amendment affirms “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
There doesn’t seem to be a clear-cut answer, despite the Fourth Amendment’s message, partly because of the technology wrapped up inside a potential police drones. Some drones can not only see clearly into your backyard, but can als0 theoretically listen (in some circumstances) and take thermal-sensitive pictures. More sophisticated drones can intercept electronic communications, track GPS information, and use facial recognition technology.
Groups like the American Civil Liberties Union and the Electronic Privacy Information Center are pushing hard for privacy-law reforms that would require law enforcement to strictly follow the Fourth Amendment when it comes to drone surveillance.
And in recent months, local politicians have started pushing for state laws that will force police to get warrants and in some cases, delay their drone usage until privacy issues can be settled.
The ACLU says 34 states have been examining some type of legislation related to drones and privacy and 29 states are still in the process of considering measures.
Virginia is close to a two-year moratorium on drone usage by local law enforcement. Two bills have passed in legislature and a debate is set for next week on an amended bill. Montana’s Senate has also passed two bills involving drones and privacy issues.
In most cases, the proposed state laws would require investigators to get a probable cause warrant before a drone is used for surveillance purposes.
Another high-profile drone case was in Seattle, where its police force grounded a drone program in February after a public backlash at an open forum.
Mayor Mike McGinn said the program was stopped to allow the city to “focus its resources on public safety and the community building work that is the [police] department’s priority.” Seattle sent two dozen drones back to their manufacturer after the move.
In North Carolina, a bipartisan bill called the Preserving Privacy Act of 2013 was filed in March to place restrictions on drone use.
Florida is also considering a Freedom from Unwarranted Surveillance Act that bars law enforcement from using drones to track suspects without a warrant.
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Amie Stepanovich, director of EPIC's Domestic Surveillance Project, told senators recently that her group recognized there were many positive uses for drones related to public safety measures, but rules were needed about the reasonable expectation of privacy and gathering personal data about “identifiable individuals.”
“The increased use of drones to conduct surveillance in the United States must be accompanied by increased privacy protections. The current state of the law is insufficient to address the drone surveillance threat,” she told a Senate subcommittee on March 20.
On a federal level, Representative Ed Markey has introduced House legislation that would require search warrants for drone surveillance and the tracking of data collection efforts.
But it was a more old-fashioned snooping tool that could have a broader impact on privacy and drones that was involved in a Supreme Court decision this week.
In a 5-4 decision, the court decided that a homeowner was protected by the Fourth Amendment after a police dog sniffed marijuana outside of the man’s house and alerted an officer, who then arrested the suspect, Joelis Jardinas, after obtaining a post-sniff warrant.
“It's very important for privacy issues because we're dealing with people in the place where they live and that's where they have the highest degree of privacy interests,” said Howard Blumberg, Jardinas’ attorney, in an interview with NPR.
Justice Antonin Scalia said it was the presence of a trained police dog on the porch that made the difference.
Ryan Calo, a professor from the University of Washington School of Law who studies drone privacy issues, pointed out to NPR that the technology already exists for chemical sensors to perform a long-range sniff test without the equipment being present on a subject’s property.
Scott Bomboy is the editor-in-chief of the National Constitution Center.