The media focused on the issue and painted a picture of weaponized drones ominously hovering over the Midwestern state.
True as it may be that police in the state now officially have a law allowing them to hook up Tasers and rubber bullet launchers to the remote-controlled contraptions, the lawmaker behind the legislation says the widespread reports are missing the larger picture: Agencies in almost every other state have the same option, it's just not on the books.
Rep. Rick Becker, R-North Dakota, will tell you in no uncertain terms that House Bill 1328 was aimed at setting guidelines for police drone use in his state. He said the original language targeted the need for authorities to obtain a warrant prior to using the devices for non-emergency purposes.
With the popular but still relatively new technology literally floating in the breeze, Becker said he saw a need to get in front of potential civil rights issues and lay down some ground rules for the use of law enforcement drones. Makes sense, right?
But, like so often is the case in lawmaking, the bill was amended as a condition of passage to include the nonlethal weapon clause. A slight disappointment for Becker, because he also wanted to eliminate the potential for the deployment of both lethal and nonlethal weapons on drones.
“The amendment removed the prohibition on nonlethal weapons,” he told Government Technology. “We had a huge success with the search warrants, but the nonlethal prohibition was removed.”
The publicity that followed, Becker said, largely misrepresented exactly what the bill means. The fervor surrounding the idea of police strapping any kind of weapon to a drone caught on like a juicy piece of gossip and immediately kicked off references to the Terminator’s Skynet program.
Becker said the issue not being reported is that while this bill does allows for the nonlethal weaponization of drones in North Dakota, many states can already do the same.
“What’s being reported is that North Dakota is the first state to legalize nonlethal weapons on drones, when in fact it was already legal and is already legal in almost all other states. North Dakota is certainly one of the first to attempt to illegalize all weapons on drones and we only succeeded in lethal [weapons],” he said. “What I’ve been pitching and no one is really picking up is that contrary to North Dakota being the first, isn’t it intriguing that essentially nearly all of the states already have the ability and it’s legal to weaponize drones? But no one is really talking about that.”
In 2013, the representative proposed similar legislation as a proactive step toward a larger conversation about the use of drones in the state. He said he wanted to avoid “kneejerk” policymaking that often accompanies new technology.
Ask the American Civil Liberties Union (ACLU) whether they have watched the ever-popular rise of drones, and experts will likely tell you that they come with inherent cause for concern.
Chad Marlow is just such an expert for the rights organization. As an advocacy and policy council for the ACLU, Marlow said he keeps careful track of drone legislation across the county.
“I think the representative is right. When we’re talking about individual privacy protections that are granted by the Constitution, those protections should not be technology-specific. The privacy of one’s home against warrantless search and seizures should not have an exception for drones,” he said. “But a lot of times, courts are slow in applying existing rules to new technologies. And so what a lot of states have done, and what North Dakota has done, is instead of sitting back and waiting for the case law to catch up with the technology, [it] has gone in and made the point clear that drones shall be subject to the same requirements as any other law enforcement techniques for gathering evidence or surveilling the public, and I think that is appropriate.”
While Marlow said attaching any sort of weapon to the remote vehicle offers reason to consider citizen safety, the ACLU is more focused on the issue of making sure the drones are used in ways that don’t infringe on privacy rights.
“There are large aspects of drone use that fall under the area of safety that are really not an area that the ACLU focuses on. However, we are concerned to the extent that uses of force, lethal and nonlethal, are exercised in a way that impacts people in violation of their civil rights,” Marlow said. “It’s certainly something that raises concern for the ACLU, but I think our greater focus on drones has to do with their use in the surveillance context. We haven’t spent as much time thinking about the ‘arming of drones,’ but that’s not to say that that’s not something we might focus in on more now that it appears states may be heading in that direction.”
Despite the hype about the North Dakota legislation, the policy advocate said he hears far more chatter centered on making sure drones are not armed.
“I can tell you as someone who monitors state drone legislation and conversations about drone legislation, I have certainly heard talk in various states about the importance of not arming drones," Marlow said. "But North Dakota is the only state, as far as I’m aware, where a serious conversation took place about arming drones."
In a seemingly rare alignment, lawmakers, the ACLU and law enforcement are on the same page when it comes to drone technology.
Jonathan Thompson is the executive director of the National Sheriffs' Association. From his perspective, most law enforcement agencies across the country are concerned about not overstepping their constitutional bounds when it comes to the blossoming technology.
“Defining the operational guidelines is key and critical to law enforcement," he said, "because the last thing they do want to do, especially sheriffs who are sworn constitutional officers, they don’t want to find themselves doing something that is contrary to the dictates of the Constitution."
As to the question of exactly how drones should be used in law enforcement, Thompson said these decisions are best made on the local level in a partnership between lawmakers and law enforcement.
“I think that’s a key question for legislatures to answer in conjunction with their local authorities. We believe that the best decisions of those nature are left to the local governing authorities and in this case, the Legislature.”
However new rules come about across the country, Thompson said they need to be weighed carefully with the fact that criminals will continue to use drones for nefarious purposes with no regard for laws or best practices.
He is hopeful any new legislation will allow law enforcement agencies to keep technological pace in their daily duties.
“In our case, and I’m sure law enforcement across the board agrees with this, we have to tread very carefully with new technology,” he said. “That’s just one side of the coin; there’s another side that people aren’t talking about, and that is the bad guys don’t care about the Constitution … and they are using these tools as we speak.”
Despite the eminent tone of articles surrounding the recently passed legislation, Becker said he isn’t aware of any agencies in his state looking to run with Taser-firing drones.
“As far as I’m aware, the only sheriff’s department which is currently actively using drones has a departmental policy that they won’t weaponize them. So it’s not something that is occurring or is likely to occur in the next months if not years, but it’s an attempt to be very clear and not wait for something to go wrong,” he said. “It’s my opinion that there should be no weaponizing the drones. War is a different story, but when we’re dealing domestically with our own citizens. I think we should not have that separation and it should not be depersonalized or dehumanized. I’m not interested in trying to prevent law enforcement from having or using drones. I think they’re fantastic. It’s a technology that will keep advancing, but I believe that we need to really make clear where the line is as far as protection of civil liberties.”
Though he isn’t a fan of the amended language in House Bill 1328, he is glad some proactive policy took hold. Becker said he plans introduce a new bill in 2017 that would remove the nonlethal drone option from the North Dakota law books.
