The idea of police drones flying over Nevada has attracted a great deal of media and public attention over the past few weeks even though no drones are FAA-licensed for use in our state.
One reason is that in February Congress passed a bill, then signed by President Obama, requiring the Federal Aviation Administration to publish regulations within 90 days making it easier and faster for drone licenses to be issued. And it wasn’t as if there weren’t any already. Currently there are about 300 Certificates of Authorizations (COA), and that 42 of them have been issued to public entities. The FAA has issued 700 to 750 COAs since 2006.
The second reason is that Nevadans can easily see especially larger police departments in the state, such as Las Vegas Metro, Reno, Washoe County, and North Las Vegas, etc., acquiring drone technology. Certainly they have enough money, and Nevada police departments are not shy about using new technologies, such as cellphone tracking or posted cameras that can see things seven blocks away. In addition, one look at which other police departments have drones makes it obvious that Nevada’s could, too. Those other police forces include Arlington (Texas), North Little Rock (Ark.), Gadsden (Ala.), Mesa County (Ariz.), Miami-Dade County (Fla.), Ogden (Utah), Seattle (Wash.), and Orange County (Calif.).
The third reason is that drones have caught the attention of the general interest mass media: ranging from “Here’s Looking at You,” an article in the May 14, 2012, issue of The New Yorker magazine, to, in Las Vegas, being covered in several different ways by Channel 3 reporters and commentators.
The national ACLU issued a report in December 2011, “Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft.” It outlines ways in which drones already are used by American governments, such as along the U.S.-Mexican border, and ways that local police could. It’s an ominous picture, frankly. The report outlines the ACLU’s specific concerns about police use of drones: “mission creep” (a drone initially bought for search-and-rescue is later used to hover continuously over a crime suspect’s house); tracking (like cellphone tracking or putting a GPS device on a citizen’s car); and new uses (such as potentially controlling protesters, stopping a fleeing vehicle, or even deploying weapons). The report asserted obvious or potential effects of police drone use: chilling effects on the public (people behave differently when watched, and not always for the better); voyeurism by rogue police; discriminatory targeting (e.g. racial profiling); institutional abuse, such as police chiefs or sheriffs deciding to spy on protesters; and problems of automated enforcement (drones cannot assess situations involving humans that another human can).
The national and Nevada ACLU recommend usage restrictions on police drones (such as not being used for mass surveillance or monitoring of First Amendment-protected activities); image retention restrictions; public input into, and public notice of, overall deployment policies; and auditing/effectiveness tracking.
Not only are those steps good public policy in a functioning democracy, but Fourth Amendment law may be helpful. While the U.S. Supreme Court has not taken a position on limits of unmanned aircraft, it stated in Dow Chemical v. US (1986), “surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a [search] warrant.” And in January’s decision in United States v. Jones, the U.S. Supreme Court prohibited attaching a GPS device to car for 28 days and said that surveillance without trespassing still may be an “unconstitutional invasion of privacy.”