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Monday, September 8, 2014

My New Paper on Regulating Law Enforcement Drones

Last Friday, I posted about my new paper where I argue for the regulation of law enforcement drones by state legislatures rather than by courts. Because I did not post the paper or mention it on this blog until late Friday evening, I thought that I should mention it again this morning, and provide a bit more context as to how my arguments in the paper fit in with some of the existing commentary on drone laws.

You can download the full version of my paper here. Here is the abstract:

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside. 
In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.

I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.
In light of the California Assembly's recent passage of AB 1327, which would require law enforcement officers to obtain warrants before using drones, many commentators have written in support of the bill. In the rest of this post, I would like to highlight some of the commentary, and how my paper fits in with what has already been said.

At The Atlantic, Conor Friedersdorf argues that courts lack any significant ability to restrict government drones since warrants would generally not be required for government drone surveillance under existing case law. Ronald Bailey at Reason makes a similar point.

In the paper, I agree that long-established Supreme Court case law leaves courts virtually powerless to impose meaningful regulations on government drone use. I go into a bit more depth with the California case law on that point in this post. A likely outcome of relying on the courts to restrict government drone use would be very little regulation in light of most existing Fourth Amendment case law.

As I mentioned in my post last Friday, Margot Kaminski argues at Slate (and in this letter co-signed with 40 other law professors) that Governor Jerry Brown should sign AB 1327. In the Slate article, she notes that while courts might be able to restrict drone use by drawing on recent Supreme Court cases like United States v. Jones and Riley v. California, the legislature can impose restrictions more quickly, and in a more informed manner than the courts.

In my paper, I acknowledge that courts feeling pressure to restrict government drone use may seek to apply the Fourth Amendment to government drones by drawing on Jones. But I differ from Kaminski in that I argue that this judicial regulation of drones would not be a desirable outcome, since the resulting restrictions would likely be novel, vague, and difficult to reverse or revise.

Faced with the potential outcomes of no regulation by the courts or unpredictable, imprecise regulation by the courts, I conclude that state legislatures are best situated to regulate law enforcement's use of drones. I look forward to seeing whether Governor Jerry Brown signs AB 1327 and whether other states decide to pass laws regulating drone use in light of what seems to be a growing trend towards doing so.

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