Unfortunately, the response from Congress suggests they should be reading a little more case law and a little less Orwell. The dozen or so bills introduced in recent months addressing unmanned aircraft and the issue of privacy not only demonstrate a misunderstanding of current law, but could have unintended consequences that hamper law enforcement officers’ ability to safely and efficiently do their jobs.
Anytime a new technology emerges, there can and should be reasonable debate over how it is used. Unmanned aircraft are no different. While they have acknowledged many of the positive potential uses of unmanned aircraft, privacy groups and civil libertarians have made their concerns over how they would impact privacy well known. Rep. Austin Scott (R-Ga.) and Sen. Rand PaulRand PaulTrump, GOP fumble chance to govern GOP senators pitch alternatives after House pulls ObamaCare repeal bill Rand Paul takes victory lap on GOP health bill MORE (R-Ky.) introduced a bill to require a warrant in any instance in which a UAS is used by a law enforcement agency. Others, such as the bill introduced by Rep. Ted PoeTed PoeHouse blocks Dem resolution on Trump's tax returns Ads dare conservatives to oppose Trump on health plan The Hill's Whip List: 36 GOP no votes on ObamaCare repeal plan MORE (R-Tex), would severely restrict the ways in which law enforcement agencies could use UAS.
While I do not question these members’ genuine concern for protecting the rights and liberties of their constituents, these and other bills like them are shortsighted.
The use of aircraft by public safety agencies is nothing new. Police have used manned helicopters and single engine planes for everything from executing high-risk warrants to searching for missing children. Unmanned aircraft simply offer law enforcement a more cost effective tool to undertake some of the task performed by manned aircraft while reducing the risk posed to men and women in law enforcement.
In the decades since aviation assets were put to use by law enforcement, we have not had a pandemic of privacy invasions. Why? Because the Constitution along with the judicial system have routinely provided rigorous protections. The Fourth Amendment to the U.S. Constitution is the foundation of our right to privacy and protects Americans from unreasonable searches. And subsequent Supreme Court cases have built the parameters for law enforcement aviation assets. In its decision in Katz v. United States, the Supreme Court noted “as a general proposition, the police may see what may be seen from a public vantage point where they have a right to be.” The Supreme Court’s decision in Florida v. Riley, a case in which police used helicopters to hover 400 feet above the house of a suspected marijuana grower, helped define an acceptable vantage point for police. Simply substituting an unmanned aircraft for a manned one doesn’t change that equation.
The Supreme Court has also addressed the advent of technology with regard to law enforcement. In Kyllo v. United States, a case in which law enforcement used thermal imaging to detect for marijuana growing, the Court set the standard that if law enforcement is using technology not available to the public, the use of that technology to observe an individual on private property may be considered a search.
Not only do some of these proposed bills seem to ignore established precedent, they also make the mistake of limiting law enforcement agencies’ ability to use unmanned aircraft for dangerous or difficult missions that have no tie to privacy. For example, in Mesa County, Colorado, the sheriff has used small UAS to photograph extensive vandalism at a public school and to help lost hikers. In Arlington, Texas, the police department has used an 11-pound mini-helicopter to quickly survey multi-car crashes, reducing congestion and minimizing the danger to which police officers on the roadside are exposed. By using UAS in these instances, we can also save significant taxpayer dollars. But under both the Scott-Paul bill, and the Poe bill, these types of UAS uses would face severe restrictions, if not outright prohibitions.
All this is not to say that Congress and federal regulators need not examine the issue to see if regulations or legislation is required. For example, the question of how data collected by law enforcement UAS is stored is a legitimate question to ask. But the idea that law enforcement currently has unfettered access to the airspace is simply untrue.
It is quite reasonable for Americans to be concerned how a new technology will impact their personal privacy. It has been a concern since the founding of this country. Fortunately, there is already precedent, through the Constitution’s Fourth Amendment and case law, by which users of this new technology must abide. Demanding protections for privacy is one thing, and it is an area in which all stakeholders – privacy groups, industry, law enforcement and federal agencies – should work together. But ill-conceived laws to unnecessarily restrict the use of unmanned aircraft by law enforcement are a tremendous disservice to anyone who might one day be helped by them.
Adelman, a partner in the Annapolis law firm Adelman, Sheff and Smith, LLC, is a legal expert on the use of unmanned aircraft systems by law enforcement agencies.