Since we are now in the early adoption phase of drone usage, it is appropriate that we get our policies and procedures aligned with public laws. I am certain that just about every state legislature in the nation is contemplating some form of law as it relates to the usage of drone technology, so it is a dynamic environment.
The following information comes from John A. Gordnier, a former California assistant attorney general. I was at the Naval Postgraduate School a few weeks back and heard him speak on legal issues in emergency management and homeland security.
He has provided the information below that lays out issues on the use of drones by public safety agencies. There will be a second blog post coming soon on a model policy, also from John, that you might consider for the use of drone technology. John is now an independent consultant and can be contacted at johngordnier0603@icloud.com
UNMANNED AERIAL VEHICLES: ISSUES FOR STATE AND LOCAL PUBLIC SAFETY AGENCIES
I. INTRODUCTION
“Unmanned Aerial Vehicle” [UAV] has become the preferred term to use when discussing what are more commonly known as “drones”. The reason for use of this more neutral term is significant. The experience of several law enforcement agencies which have obtained and put these devices into service has been significant public outcry; in one case leading to the resignation of the Chief of Police.
The public associates the term ”drone” with the very sophisticated surveillance and armed UAVs the use of which in combat zones has been highly publicized.
Although Congress has provided the Federal Aeronautics Administration with authority to develop regulations governing the domestic use of UAVs[1] the public concerns led Congress and nearly all states to consider legislation governing use of UAVs[2]
This document will deal first with the practical steps that a public safety agency contemplating acquisition of a UAV should take to achieve public understanding of and support for the use of UAVs in that jurisdiction.
The second area of concern is the legal issues that UAV use will bring into play. Unfortunately at present there is no case law that has directly considered the constitutional aspects of UAV use. Cases which have been decided by the courts that involve traditional aerial surveillance and privacy provide some bases for projecting what results in UAV cases might be, but provide no definitive guidelines[3].
One case, State of New Mexico v. Norman Davis [N.M. Ct. App. Jan. 14, 2014], has indirectly shown one direction that state courts might take. Although Davis involved a helicopter which flew over Davis’ greenhouse and observed marijuana being grown the court observed, in dictum, that “Indeed, it is likely that ultra-quiet drones will soon be used commercially and, possibly, for domestic surveillance.” The court then went on to hold that regardless two United States Supreme Court decisions [California v. Ciraolo 476 U.S. 207 (1986) and Florida v. Riley 488 U.S. 445 (1989)] which would support the conclusion that there was no Fourth Amendment violation there was a violation of the New Mexico constitutional provision protecting the privacy of that state’s citizens. It is clear that states could employ similar state constitutional provisions to provide protection from drone surveillance to its citizens. The Davis case may be overturned by the state supreme court, but its reasoning should not be ignored.
Because the legal framework has yet to be fully developed, this paper will focus on suggestions for procedures and policies that can be adopted to address the legitimate concerns about the balance between constitutional protections and the public safety advantages that can be realized through UAV use.
II. RECOMMENDED STEPS FOR IMPLEMENTING UAV USE
Step One:
Ascertain whether your governing body has passed a law regulating UAV use. If your agency is located in one of the jurisdictions[4] which have passed a law regulating use [see Appendix 1] review the law and incorporate the requirements into your policy governing UAV use.
If your governing body is considering but has not yet passed legislation [see Appendix 1] governing UAV use, become involved in the legislative process. In this connection it would be beneficial to work with your legal counsel to be able to address the inevitable constitutional objections that will be raised. It will also be beneficial to have a proposed policy [see part III, infra] prepared that demonstrates consideration of the privacy concerns.
Step Two:
Determine the specific uses which your agency intends to make of UAVs and prepare fact based analyses that support the conclusion that UAVs will: (1) do the task more effectively than existing methods; (2) do the task in a fiscally sound way; (3) will provide greater public and officer safety; and (4) will involve no greater intrusion on constitutional rights than existing methods which have been approved by judicial decisions.
Develop the policies and procedures that will govern the use of the UAVs by your agency. Seek input from the public, especially the civil liberties community in your jurisdiction, in the development of the policies and procedures. Involve the mediums of communication in your jurisdiction in the process.
Present the summary of intended uses along with the proposed policies and procedures to your governing body for approval before obtaining a UAV. Unless disclosure of intelligence otherwise protected from public disclosure under the laws of your jurisdiction would be necessary to the presentation, make this presentation at a public hearing. Publicize the presentation to encourage maximum public participation.
Step Three:
Select a UAV that has only the capabilities necessary accomplish the uses that have been approved by your governing body. If the selected UAV has the capability to accomplish unapproved uses be prepared to show how those uses will be disabled or controlled. Submit the specifications (including capabilities) of the UAV to your governing body for purchase approval. Provide for public disclosure of the capabilities for which approval is sought.
In this connection it will be necessary to demonstrate that the UAV selected has the necessary protections against being “hijacked” by a competing control signal.
Step Four:
After the delivery of the UAV invite representatives of the governing body, the public, local civil liberties groups and the local mediums of communication to a demonstration of the capabilities and limitations of the UAV.
Step Five:
Prepare an annual report that details the use of the UAV and quantifies the savings and enhancements to public safety which result. The report should include “success stories” which support the effectiveness of UAV use over traditional methodology.
In the event that UAV use has been challenged in the local judicial system include the results of the challenges in the annual report. If a challenge has resulted in an unfavorable decision that has become final, show that the policy has been altered to comply with that decision.
Step Six:
If additional uses are appropriate repeat the process before initiating those uses.
[1] “The FAA Modernization and Reform Act of 2012”.
[2] A synopsis of these legislative actions taken appears in Appendix 1.
[3] The best summary of the legal issues surrounding UAVs is in a Congressional Research Service report, “Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses.” [CRS/R 42701 (2013)]. The report concluded that existing law may or may not be controlling.
[4] Remember that it is necessary to consider local – city and county – ordinances as well as state laws. It is likely that many local jurisdictions will enact controlling laws.
