What’s Keeping Drones Out of the City

Last week I posted about the opportunities for cities to improve law enforcement effectiveness, save money, and create jobs and fun in their communities. But to do that, they need to navigate legal issues.

The first challenge is how to allow safe flying. Congress mandated in the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012 that the FAA issue rules by September 2015 to integrate drones into the national airspace. Until then, drones are subject to rules designed for model airplanes and stop-gaps. Recreational users are to fly below 400 feet and away from airports. Public and commercial users require a Certificate of Authorization or Waiver from the FAA. The COAs are granted on a case-by-case basis and so far, 1,428 have reportedly been granted. Once the rules are issued and drone users are not subject to a slow-moving individual application process, we can expect many more drones in the sky.

The big concerns are around personal privacy when governments use drones for police purposes. The Fourth Amendment protects against warrentless searches of the home, including searches by drones. However, no warrant is required for actions taken in plain view; so a standard camera capturing images from outside a window may not require a warrant. Whether a drone would be permitted to surveil backyards, driveways, or public areas for a sustained period of time without a warrant is unclear, but it will depend on how courts analogize drones to current police practices, such as aerial surveillance.

Most people have an opinion about drones, but they are evenly split. According to an AP poll, 44% are in favor of allowing local US police forces to use drones, and 36% are opposed.

Why do people care so much about drones? Being watched by a drone is not inherently worse than being watched by anyone else with a videocamera – it is the act of being followed or monitored by an official with potential power of your liberty that is objectionable. One potential explanation could be that the ease and low cost of drones makes it more likely such spying would occur. Another is that a drone, especially a more expensive model, could monitor a large volume of conduct without your knowledge, and that this is a qualitatively larger intrusion.

Whatever the reason, privacy advocates seem to be getting the better of the debate, for a change. In Alamadea County, California (Oakland), a group that inexplicably chose the handle @N.O.M.B.Y. (Not Over My Backyard, an allusion to the five-letter word planners use for opponents of change, NIMBY), has mobilized against drones in their community. Legislation has been introduced to Congress, most recently a non-binding amendment to the budget by Senator Dianne Feinstein (D-CA) demanding greater consideration of privacy rights. Further legislation is in the works by Senator Mark Udall (D-CO) and Congressman Ed Markey (D-MA). States are also in on the act, including for example Massachusetts and Virginia, but privacy advocates are facing opposition in places like Washington. Some cities have banned their use outright, including Charlottesville, VA, and Seattle, WA.

I expect opponents of drones are probably more agitated against them than proponents are enthusiastic in favor, but that may be offset by the financial advantage of commercial companies seeking to promote their use and make sales.

If a city’s leadership is looking to take advantage of drones to get some of the opportunities I talked about yesterday, they will likely confront a backlash in using them for law enforcement. One option is to focus on cost saving and commercial applications, and law enforcement applications unrelated to surveillance. The other is for city governments to spend time up front, establishing procedures on drone surveillance that will prevent them losing important criminal evidence in court (e.g., warrant requests), and for state governments to establish evidentiary rules on how evidence obtained through drone monitoring may permissibly be used.

Average people and hobbyists can’t get COAs yet, so art projects, science fairs, and so on will have to wait or operate illegally. Check back next week for more on the interesting legal issues that arise in this context.

About Matthew Lipka

Matthew Lipka is a 1L at HLS. Before law school, he worked at a transit agency and as a consultant with infrastructure and industrial companies and the public sector.

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