Sweden Effectively Bans Drones with Cameras

From The Verge:

The Supreme Administrative Court of Sweden just ruled that camera drones qualify as surveillance cameras and require a permit under Sweden's camera surveillance laws. The ruling requires owners to cough up a sizable fee in order to get their equipment off the ground, and paying to start the process is no guarantee a citizen will be granted the right to fly. County administrators will have to consider whether use of a "surveillance camera" overrides the public's right to privacy on a case-by-case basis.

. . .

The ruling targets recreational and commercial users alike, and makes zero exceptions for journalists. Sweden's leading drone company Unmanned Aerial System (UAS) said up to 3,000 people may lose their jobs as a result of the court's decision.

Engadget suggests that even if people manage to pay the application fee, most applications will be denied as surveillance cameras are only permitted to prevent crime or accidents, and most people use drones with cameras for different purposes. ABC also reports that this is the case.

This is not the most extreme instance of countrywide drone restrictions. I previously blogged about India's ban on drones -- a ban that is still in place. While the Swedish Supreme Administrative Court's ruling is limited to the use of cameras attached to drones, the ruling will likely restrict a great deal of drone use.

Normally I would not place this much faith in secondary sources reporting on a ruling, but language barriers prevent me from investigating further. I think that the opinion is here, and any readers out their who know Swedish can feel free to flag any mistakes I have made in this post.

Oakland's Resistance to Mass Surveillance: Would it Play Out the Same Way Today?

The BBC has this interesting article on an attempt by the City of Oakland, California to adopt a wide-ranging surveillance system, and the resistance to the city's efforts. From the article:

Most cities, including Oakland, have cameras monitoring traffic intersections and public areas. But a Domain Awareness Centre, or DAC, is far more sophisticated. It is still based around a bank of screens, but the camera feeds are augmented by data from weather reports, shipping movements, social media chatter, email records, emergency calls and other data sources. 

The port of Oakland had been given federal funds in 2008 to build a DAC as part of a post-9/11 push to protect critical infrastructure from terrorist attack. 

At some point, the city council decided to extend the system to cover the whole of Oakland and its population of 400,000 people. 

. . .

Hundreds of new cameras would be installed across the city and data would be incorporated from from licence plate readers, gunshot-detection microphones, social media, and, in later phases, facial recognition software and programmes that can recognise people from the way they walk. 

The city said it needed an early warning system to give "first responders" a head start when dealing with emergencies like chemical spills and earthquakes, as well as major crime and terrorist incidents. 

But privacy campaigners in the city were alarmed at the thought of the Oakland Police Department having access to an all-pervasive real-time surveillance network. Particularly one that did not have a policy on what data would be stored and for how long. 

The article goes on to report that the Oakland City Counsel hosted a "marathon" meeting on March 4, 2014 to debate the scope of the DAC. At the meeting, privacy advocates, former "Occupy" protesters, and members of Oakland's African American and Muslim communities spoke out against the DAC, and the proposed surveillance program was ultimately scaled back "dramatically."

I blogged about the federal grant Oakland received back in 2013. In that post, I shared the concern of many of the privacy advocates cited by the article that the widespread surveillance system would be implemented or employed in a manner that would lead to disproportionate surveillance of racial minorities and less-wealthy citizens.

Oakland's attempt at surveillance, and the resistance the attempt inspired, is an interesting case study for the implementation of widespread, automated security measures in urban settings. The BBC suggests that the timing of the Snowden leaks gave momentum to the protest against the proposed surveillance -- as both the content of the Snowden revelations and Oakland's proposals involved the issue of technologically enabled mass surveillance.

I am curious as to whether the same level of resistance would arise in today's political climate, in which most attention seems focused on instances of excessive force employed by police officers and fear of excessive force in personal encounters with officers. These issues seem far-removed from questions of systematic surveillance practices their broader impact on privacy. Indeed, as I discuss at length in this post, today's discussions of policing practices often include calls for body cameras despite warnings from groups like the ACLU that these cameras may lead to systematic privacy violations.

Moreover, those concerned with police excessive force may be tempted to advocate for wider, automated surveillance systems. These systems may appear to enforce the law in a manner that avoids officer discretion, which may arguably reduce the incidence, or opportunities for instances, of excessive force. But as commentators like Elizabeth Joh point out, officers can still exercise discretion with widespread, automatic surveillance systems by focusing those systems on particular people or groups of people.

More cities will likely attempt to adopt wider, more technologically sophisticated surveillance systems as time goes on and as the technology becomes more accessible. I suspect that resistance to these proposals will be less pronounced than in 2014 as notions of mass surveillance become more normalized and as long as protests against law enforcement remain focused on the actions of individual officers rather than on the policies and procedures adopted by departments and municipalities as a whole.

Police Body Cameras: Not a Cure-All, But a Step in the Right Direction

The Wall Street Journal has this article from last week on police body cameras and the Alton Sterling shooting. The Journal notes that while footage of the shooting was captured on video, body cameras that the police officers were wearing did not pick up any footage. The officers reported that their "lapel cameras became dislodged while trying to subdue 37-year-old Alton Sterling."

From the article:

The shooting, which was filmed by several bystanders, came after one of the officers appeared to kneel on Mr. Sterling and hold a gun to him. The incident shows the limitations of body cameras, even as cities scramble to outfit officers with the devices amid public outcry over police shootings. 

The devices are meant to provide greater police transparency and accountability, but over the past several years, police across the country have encountered a litany of issues with body cameras—from officers refusing to activate them, to disputes over when footage should be publicly released, to technical malfunctions. 

. . .

Some district attorney offices around the country have reported being overwhelmed with camera footage of even the most mundane police encounters, which can take time and resources to sift through. 

In other instances, the American Civil Liberties Union has criticized police departments for failing to publicly release camera footage during investigations of officer shootings or other use of force incidents. 

“The problems with law enforcement go much deeper than can be solved by cameras,” said Jay Stanley, senior policy analyst for the ACLU. “They are a tool, which have the potential to help if the officer is well-trained and feels it is more likely to protect them then be used against them.” 

Still, several studies have shown that use of force incidents and citizen complaints have both gone down after officers begin wearing cameras.

The ACLU objects to body camera policies that fail to address public access to body camera footage. The ACLU also argues that body camera usage that may be used to increase police surveillance capabilities. For a thorough statement of some of the most common objections to body camera policies, you can see the ACLU's letter to the Bureau of Justice Assistance in which the ACLU argues against a federal grant to aid in the purchase of body cameras by the Los Angeles Police Department.

While I see where the ACLU is coming from, I ultimately find their arguments unconvincing. In this post I would like to walk through ACLU's arguments against the LAPD grant outlined in their letter and why I ultimately think that it is generally better for police officers to have body cameras.

Aerial Surveillance, Intrusiveness, and the Fourth Amendment

Eugene Volokh has this post at the Volokh Conspiracy highlighting the recent case of State v. Davis in the New Mexico Supreme Court. In that case, police officers observed property by flying over it at a height of fifty feet in a helicopter. The Court held that the intrusiveness of this surveillance, which apparently included broken beams and solar panels, rendered the flyover a Fourth Amendment search.

The Court also criticized the New Mexico Court of Appeals ruling on the case, which noted that intrusiveness should not be the metric for determining whether a search has occurred because officers may use drones to conduct equally low flyovers without the noise, dust, and damage of a helicopter flyover. The New Mexico Supreme Court pointed out that the Court of Appeals' discussion was unnecessary speculation.

This approach is consistent with the United States Supreme Court's approach in United States v. Jones, in which the majority held that officers had conducted a Fourth Amendment search when they attached a GPS device to a car and tracked it for a prolonged period of time. Rather than hold that the prolonged gathering of information rose to the level of a search, the majority concluded that the act of attaching the GPS device was a physical trespass and therefore violated the Fourth Amendment.

While the Davis court only makes a passing reference to Jones, the Court is correct to conclude its analysis with its discussion of intrusion, as such an intrusion is sufficient to establish a Fourth Amendment violation. Going beyond the intrusiveness discussion is therefore unnecessary to resolve the question presented.

But one day, the question will be presented as to whether a low-flying police drone constitutes a Fourth Amendment search. When that question arises, the drones involved likely will not kick up the dust, incite the panic, or cause the damage that is the central focus of the Davis Court's decision. When that day comes, courts may find themselves constrained by the precedents cited in Davis which uphold the constitutionality of aerial observations. This will be especially true if state and federal laws are drafted in a manner that gives ordinary drone users a wide range of freedom in flying their drones, as common drone use will form the foundation of people's reasonable expectations of privacy.

Courts can be rescued from these difficult decisions, however, if states draft rules regulating the use of evidence obtained by police drones. State legislation can be drafted in a manner that balances law enforcement interests with privacy interests -- and this balance can be reached through debate and public input, rather than through speculation and generalizations that may arise from a single case before a deliberating court.

For those readers interested in hearing more on what I have to say on state drone laws, check out my article on the subject which was just published by the Harvard Journal on Legislation. You can find that updated version on SSRN as well.

California Governor Vetoes Drone Trespass Bill

So reports the LA Times:

Gov. Jerry Brown on Wednesday vetoed legislation to restrict the use of drones over private property.

The legislation would have made flying a drone lower than 350 feet above private property without consent a trespass violation.

"Drone technology certainly raises novel issues that merit careful examination," Brown wrote in his veto message. "This bill, however, while well-intentioned, could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action.

Additional reporting on the bill (SB 142) and the veto is available here, here, and here.

The California bill was proposed in light of privacy concerns raised by low-flying drones. Supporters argue that drones may be equipped with cameras and by flying low over private property, they may capture invasive images or video of people on that property. Opponents of the bill note that the bill is difficult to enforce and may curtail people's freedom to operate drone technology.

A notable impact of this bill's veto is that law enforcement agencies will not be curtailed in their use of drones. As I blogged previously, Governor Brown vetoed a bill that would have required warrants for law enforcement drone use back in 2014. In vetoing that bill, Governor Brown noted that the bill's protections went beyond Fourth Amendment restrictions on government searches and surveillance -- a justification that does not really mean much, since if the bill had not gone beyond Fourth Amendment protections, the bill would not have added anything to the legal landscape of government drone use.

The most recent drone trespass bill would have effectively limited government drone use had it been passed. Under United States v. Jones, the government carries out a Fourth Amendment search when it trespasses on somebody's property. Had SB 142 passed, it would have been trespass for drones to fly less than 350 feet above private property without the consent of the property owner. Law enforcement agencies would therefore be restricted from flying drones in such a manner, because the resulting trespass would constitute a Fourth Amendment search. Gregory McNeal advocates a similar approach for restricting law enforcement drone use in this paper.

Governor Brown's veto message noted his wish to avoid unnecessary causes of action against hobbyists. While the focus of much of the debate over this bill has been on private actors, it is worth noting that a significant restriction on government drone use has just been vetoed as well.

UPDATE: 9/11/2015: Title of post edited to correct misspelling.

XKCD on Drone Regulation

Regular readers of this blog should know that I am interested in state and federal regulation of drones. It therefore shouldn't be a surprise that I am particularly amused by XKCD's take on drone regulation, which a friend shared with me earlier today:

This proposal is notable because it has the potential to please both those who are concerned about the privacy implications of widespread drone use and those who oppose increased government regulation of drones.

New Florida Law Restricting Private Drone Use

Florida's governor recently signed S.B. 766, a bill that expands and clarifies restrictions on drone use listed in section 934.50, Florida Statutes. The full text of the bill is available here. Reports on the passage of the bill are available here, here, and here. 

Prior to the passage of this bill, section 934.50 contained a wide restriction on government drone use. 934.50 prohibited the use of drones by law enforcement agencies to collect evidence except in cases where a warrant was first obtained, there was a high risk of a terrorist attack, or there was a risk of imminent harm to somebody. Those exceptions still exist after the passage of S.B. 766.

S.B. 766 is notable because of the restrictions it places on private drone use. The bill adds subsection 934.50(3)(b), which states:

(b) A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

The scope of this restriction is clarified by the new subsection 934.40(2)(e), which defines "surveillance" as:

1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or

2. With respect to privately owned real property, the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

A person using a drone violates this law if he or she uses a drone to collect images that are clear enough to identify unique identifying features about a piece of property or people on that property. The incidental collection of such images by a drone that is used for different purposes would not appear to violate the restrictions on private drone use. Additionally, this law does not apply to property that is not fenced-in or vast, since features of this property would likely be observable by somebody on the ground, meaning that the property owner would not have a reasonable expectation of privacy.

The law does not criminalize the use of drones for this sort of surveillance, but it does contain a provision permitting civil lawsuits for those who are subject to drone surveillance that violates the provisions of section 934.50. The prevailing party in such a lawsuit would have the right to obtain attorney's fees, and a person subject to surveillance in violation of this law would have the right to seek punitive damages and/or injunctive relief.

The new provisions in S.B. 766 seem fairly reasonable to me. By requiring an intent to conduct a surveillance and a violation of a reasonable expectation of privacy, Florida's new law permits quite a bit of drone use -- even use that may incidentally capture images of private property. Additionally, the bill does not criminalize private drone use that violates the law's provisions, and instead only provides a civil remedy.

North Dakota's New Law Restricting Law Enforcement Drones

North Dakota's governor recently signed this bill (H.B. 1328) restricting the government's use of drones, which makes North Dakota the most recent state to restrict law enforcement's use of drone technology to obtain information and evidence. The Tenth Amendment Center and The West Wire News note this development and argue that the law is a positive step that will protect privacy and thwart federal surveillance efforts.

As far as state laws restricting government drone use are concerned, North Dakota's is one of the stricter laws I've seen. North Dakota's new law requires law enforcement agencies to obtain a warrant before using drones to gather information. Beyond satisfying constitutional requirements, applications for drone warrants need to specify how long the drone would be used, the locations where the drone would operate, and how long any information gathered would be retained.

Section Two, subsection two notes that prosecuting agencies may still use drone-obtained information "in accordance with exceptions to the warrant requirement." But notably, this subsection does not permit the use of information obtained in accordance with judicially-recognized exceptions to the warrant requirement. Most activities drones can observe could be viewed by the general public, Accordingly, laws that contain exceptions to warrant requirements based on judicially-created doctrine end up having very little effect on what law enforcement agencies can do, as I have argued at length in this article and in posts here and here. By omitting the qualifier "judicially-recognized," the law presumably limits any exceptions to the warrant requirement to the exceptions listed in the statute.

And the exceptions listed in the statute are quite narrow. Section Four states that warrants are not required when national borders are being patrolled, when there is "reasonable suspicion that absent swift preventative action, there is an imminent danger to life or bodily harm," when responding to natural disasters, or when using drones for research and development purposes. Notably, this law does not contain exceptions permitting law enforcement drones in situations where a suspect or inmate is fleeing police custody or to document traffic collision or crime scenes.

I think that some of these missing exceptions could enhance North Dakota's law enforcement agencies' ability to use new technology without having much of an impact on privacy. But unlike some other states that have passed laws purporting to restrict government drone use, North Dakota's law does indeed impose strict limits on law enforcement agencies' use of drone technology.

Alaska Law Purports to Restrict Government Drones, But Does it Really?

Earlier this summer, Alaska's governor signed HB 255, a bill regulating the government's use of drones. As of October 26, that bill is now law.

You can find the full text of the bill here. The most noteworthy portion of the bill adds Alaska Statutes sections 18.65.900 - 909, which are the provisions pertaining to government drone use. Last I checked, these statutes are still not up on Westlaw or on any website displaying the Alaska Statutes, but the legislature's website makes it pretty clear that this bill was signed into law and that its effective date was three days ago. I will therefore refer to Alaska's drone law by the numbers of the sections that HB 255 added to the statutes.

Privacy advocates typically argue that restrictions on government drone use protect citizens' privacy, since drones could be used to undertake continuous surveillance of people's public movements and homes. Privacy advocates argue that warrants should be required for law enforcement agencies to use drones.

At first glance, it looks like privacy advocates have gotten what they want with Alaska's drone law. Section 18.65.900 prohibits government drone use unless that use falls under the exceptions specified in the bill. Section 18.65.902(1)(A) states that government agencies may use drones in criminal investigations as long as the drone use takes place "under the express terms of a search warrant issued by a court."

But Section 18.65.902(1)(B) states that government agencies can use drones for criminal investigations as long as the drone use is "in accordance with a judicially recognized exception to the warrant requirement." As I have previously discussed at length in the context of California law, and in other discussions of drone laws here and here, this sort of provision effectively removes any meaningful restriction that this law could have on law enforcement drone use. Under existing Fourth Amendment case law, police do not need a warrant to track somebody's movements from the air, nor do they need a warrant to conduct surveillance of a person's yard as long as the police are flying in commonly used airspace.

Because the Alaska law permits existing judicial exceptions to the warrant requirement, the bill would not meaningfully restrict law enforcement agencies from using drones to track people's public movements or conduct surveillance of people's homes. While law enforcement agencies may feel that this is a favorable outcome, it carries the risk of putting more pressure on judges to restrict exceptions to the warrant requirement in cases of government drone use -- which could cause this law's broad allowance on government drone use to backfire.

This is also not to say that privacy advocates haven't gained anything through this legislation. Section 18.65.901(a)(5)-(6) would require law enforcement agencies to keep records of their drone use, which would include the time, date, and purpose of the flights, and be open to audit. If the fears of privacy advocates were realized, and the government ended up using drones for pervasive surveillance, this use would be reflected by these records, which could prompt policy changes in the future.

Additionally, I think that this law could have been better drafted. Parts of the law are written in such a slipshod manner that they have substantive implications for the law's operation. Consider, for example, section 18.65.901(a)(7), which requires law enforcement agencies to "establish a method for notifying the public of the operation of an unmanned aircraft system, unless notifying the public would endanger the safety of a person."

Does this mean that law enforcement agencies will be required to use this notification method when the method is in place? It doesn't say that. But if the law did require the use of that notification method, would notification be required in all cases where the "safety of a person" was not endangered? This would seem to limit the effectiveness of drone use in, say, drug crime investigations if the notification happened before, rather than after, the use of the drone. And if notifying the public of the government's drone use would endanger the safety of a person, should law enforcement agencies not notify the public, or should they cease establishing a method for notifying the public altogether? The wording of the subsection seems to call for the latter meaning.

Finally, it seems downright inconsiderate to those reading the statute to require a search warrant for law enforcement drone use in criminal cases, but then permit that drone use in non-criminal situations where no "unwarranted" invasion of privacy will occur. While I get the meaning of this subsection, and while I think that this section of the statute can be applied without any serious problems, the inconsistent uses of the term "warrant" in the same subsection of the law lead me to conclude that the drafters should have put a bit more thought into the wording of the statute.

Sachs on State Drone Regulations

Peter Sachs, a lawyer and notable commentator on drone laws, has posted his testimony (available to download here) where he argues against regulating both government drones and private drones. At this time, I am not sure where he gave this testimony, but based on prior events, I suspect that this may be testimony for the Connecticut state legislature's Judiciary Committee. Sachs has taken a strong position against drone restrictions in prior testimony before that committee.

I do not have much to say about Sachs's points on regulating private drones. I agree that overly restrictive regulation of private drones could hinder the development of this new technology in unpredictable ways. And I think that privacy concerns related to drone use are generally overstated and can be addressed by other laws prohibiting invasion of privacy.

But I take issue with a few of Sachs's arguments against regulating government drones. Sachs argues that there is no logical need for warrants on government drones and points out that high-powered cameras in helicopters can see far more than a government drone can see. I think this fails to address the main concern of privacy advocates, which is that drones can be used for prolonged surveillance of somebody's public movements or of somebody's home.

Drones require less fuel to operate, can be launched more conveniently, and are easier to fly than a helicopter, meaning that law enforcement officers may use this technology for continuous surveillance. The fear is not that drones will necessarily see more detail than helicopters, but that they can observe somebody's home or movements for a much longer time. Sachs needs to address this particular concern in order to meet the arguments of privacy advocates.

Sachs also argues that "there is no legal need" to require law enforcement agencies to obtain warrants before using drones, Sachs is probably (though not certainly) correct that the Fourth Amendment's prohibition on unreasonable searches does not apply to aerial observations of one's property, and cites case law supporting that conclusion.

But just because continuous observation by government drones does not violate the Fourth Amendment doesn't mean that governments should not place regulations that go beyond existing constitutional protections. In fact, the Fourth Amendment's inability to regulate government drones is what motivates privacy advocates to argue for legislative restrictions in the first place. State legislatures are free to enact laws that restrict government searches beyond the restrictions of the federal constitution. And as I argue elsewhere, the interests of both privacy advocates and law enforcement would be best served if legislatures, rather than courts, were tasked with restricting government drone use.

Sachs raises some good points about government regulation of drones. But his arguments fail to address privacy advocates' concerns that government drones may be used for continuous surveillance.

North Dakota: Law Enforcement Officers Use Drone to Locate Fleeing Suspect

Fox Business reports that Grand Forks County Sheriff's deputies used a drone to locate suspects who fled the scene of a traffic stop. From the article:

An unmanned aircraft unit led by the Grand Forks County sheriff's department flew its first nighttime mission after four suspects fled during a traffic stop, department officials said Monday. 

Officials said the drone team was contacted after a K-9 unit was unable to locate the occupants of a vehicle that was pulled over about 2:20 a.m. Sunday in rural Larimore, about 30 miles west of Grand Forks. 

The aircraft discovered one of the suspects in a corn field, although he ran away before deputies could find his location, officials said. Two suspects were eventually arrested on the scene, and a third was taken into custody later.

North Dakota has a history of making the news with regards to law enforcement drone use. In 2011, Nelson County Sheriff's deputies used a predator drone for aerial surveillance while investigating and ultimately arresting a suspect. The suspect's Fourth Amendment challenge to the use of the drone did not succeed.

The Fox article includes some commentary concluding that the Grand Forks incident does not raise any legal concerns. I think that is correct. North Dakota has no laws restricting the use of drones by law enforcement. And the drone in this case was used to conduct aerial surveillance of a person's outdoor movements, so there does not appear to be any infringement on a Fourth Amendment reasonable expectation of privacy.

It is also worth noting that this sort of drone use would be permitted in states with warrant requirements for government drone use as long as the states include an exception to the warrant requirement in scenarios that involve fleeing suspects. Illinois, for example, includes an exception to its warrant requirement in Section 167/15(3) of its drone regulations in cases where "swift action is needed to . . . forestall the imminent escape of a suspect."

State legislatures that are considering or debating laws requiring warrants for drone use should give serious thought to including similar exceptions to their warrant requirements. The most recent North Dakota incident shows how drones can be effective at locating fleeing suspects at night. And if police have the technology to easily locate fleeing suspects, there will be less pressure to use heightened, and possibly deadly, force to apprehend the suspect at the scene.

Would Flying a Drone "Outside of Navigable Airspace" be a Fourth Amendment Search?

John Burkoff has recently posted an article to SSRN on whether the Fourth Amendment's protection from unreasonable searches can limit the government's use of drones for law enforcement purposes. After surveying the history and development of Fourth Amendment jurisprudence, he concludes:

[L]aw enforcement officers cannot, in any event, use drones – as a matter of federal constitutional law – when they: (1) are flown outside of navigable airspace; (2) create undue noise, wind, dust, or threat of injury; or (3) obtain any information in an effectively physically intrusive manner from a constitutionally protected area.

I've blogged previously about the extent of Fourth Amendment protection against aerial surveillance of one's home and person. To briefly summarize, the government may use a plane or helicopter to conduct surveillance of one's home or person as long as the government is flying within commonly-navigated airspace. (See Florida v. Riley).

Already, there is a problem with Burkoff's claim that "navigable airspace" limits where law enforcement agencies can conduct aerial surveillance. While the plurality in Riley stated that Federal Aviation Administration (FAA) regulations governed where law enforcement helicopters could fly, Justice O'Connor's concurrence took the narrower approach that police needed to fly their aircraft in locations and at heights where that type of aircraft was commonly used. The test, therefore, is not whether the airspace is "navigable," but rather, whether the airspace is "navigated."

This test is difficult to apply to government drone use. The government may not use planes or helicopters to conduct surveillance at certain heights (say, below the Riley height of 400 feet), because those types of aircraft are not commonly flown below those heights. But drones are not subject to the same limitations as aircraft. In fact, the FAA has stated that drones may be used by hobbyists as long as they are flown below 400 feet. The FAA also states that drones are not to be flown above heavily populated areas, which may be a point in favor of those who argue that the Fourth Amendment limits government drone use. Perhaps these restrictive FAA guidelines can lead to stronger Fourth Amendment restrictions government drone use compared to Fourth Amendment restrictions on the use of planes and helicopters.

Drone advocates, however, argue that these regulations are simply advisements that do not carry the force of law, since the FAA has not yet drafted explicit rules for the use of drones. Hobbyists, after all, frequently use drones for photography and shooting video over populated areas, and this activity has not been prosecuted by FAA officials.

In the absence of clear restrictions, frequent and widespread hobbyist drone use may mean that the Fourth Amendment restricts government drone use even less than it restricts alternate means of aerial surveillance. Regulations governing helicopters and airplanes have the force of law and are consistently followed, which means that there are clear boundaries governing where law enforcement can and cannot fly these aircraft. But the legal uncertainty surrounding regulations of drone flight means that it is not at all clear where and how drones are commonly used.

This uncertainty could lead courts to conclude that drones are not commonly flown above houses or streets, and therefore could allow for greater Fourth Amendment protection against government drone use. But it could also lead courts to find that hobbyist drones are commonly flown at low heights over houses, streets, and parks, meaning that government drones could be flown in the same manner without implicating the Fourth Amendment.

In light of this uncertainty, it may be overly hasty to conclude that the Fourth Amendment prohibits government drone use outside of "navigable" airspace. Even if that conclusion is true, the boundaries of this navigable airspace are not at all clear.

All of this discussion illustrates only one of the difficult issues that courts would need to answer in the event that government drone use is challenged on Fourth Amendment grounds. I argue elsewhere that legislation is a better avenue for addressing these complicated questions. But in states without drone laws, whether it is because of legislatures' resistance or executive vetoes, courts may not have long until they are required to rule on these issues.

California Governor Vetoes Law Restricting Government Drones

The Los Angeles times reports that California Governor Jerry Brown has vetoed AB 1327, a bill that would restrict law enforcement agencies' use of drones. As I mentioned in this previous post on the law, Governor Brown's veto is consistent with his tendency to block legislation that imposes constraints on legislation that go beyond that which is required by the Constitution.

Governor Brown's hesitation to sign off on laws that restrict police action beyond constitutional limits seemed to motivate his decision to veto AB 1327. His veto message can be found here. From the veto message:

There are undoubtedly circumstances where a warrant is appropriate. The bill's exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution.

I agree that the law went beyond the restrictions required by the Fourth Amendment. But that is because Fourth Amendment restrictions on government drones are extremely limited, as I explain at length in this post. Under long-established case law, the government may use drones to conduct surveillance on people whether they are near their homes or driving in public without raising any Fourth Amendment concerns.

Privacy advocates are therefore understandably disappointed with Governor Brown's veto. But as I argue at length in this paper, law enforcement agencies have reason to be concerned as well. In the absence of legislation that restricts the government's ability to use drones, the courts may attempt to step in and fill the void. There are undertones in recent Fourth Amendment cases that may call for restriction on government surveillance when permissive surveillance is conducted for such a long time that it becomes a Fourth Amendment search. Orin Kerr labels this view the "Mosaic Theory" of the Fourth Amendment.

In the absence of laws that regulate law enforcement drone use, courts may try to take up the task of restricting government drones by expanding Fourth Amendment doctrine. But the courts are ill-equipped for this task, since there is no clear legal basis for expanding Fourth Amendment protections and because courts do not have the technological know-how to determine just how far their restrictions on emerging drone technology may extend. Accordingly, law enforcement agencies should support legislative regulation on drones. Vetoes that leave the courts with the final word on drone technology create a risk of uncertain legal outcomes that may hinder law enforcement interests.

I have acknowledged that AB 1327 had shortcomings. But I think that Governor Brown's reason for vetoing the bill is dangerously broad. At some point, government technology should be regulated through legislation. The Fourth Amendment is becoming increasingly ill-suited to prevent emerging technology from violating privacy. To avoid strained, overly-broad, and potentially irreversible interpretations of the Fourth Amendment, states should enact legislation that increases privacy protection, while giving the government leeway to use new technology to enforce the law.

Drone Licenses in Jackson, Mississippi?

That seems to be what members of Jackson's City Council are proposing in this WAPT News Report. Councilwoman Larita Cooper-Stokes recommends a policy that would require "everyone who's using drones in the City of Jackson" to register, noting that "we need to know who you are and we need to know what you're doing." Councilman De'Keither Stamps points out that privacy concerns are motivating the call for restriction, and worries about the prospect of people using drones to look through other people's windows.

The Clarion-Ledger reports on the story here, and notes that other cities have restricted the use of drones. This includes Iowa City, which banned the use of police drones last summer. A universal licensing requirement, however, would not be limited to government drones -- it would affect everybody.

While drones may be used to spy on people in ways that alternative technology could not facilitate, I think that calls for a drone registry are alarmist. Gregory McNeal argues that a lot of journalism about drones is "sensational," but that many of these reports end up covering incidents where the drone use was far more benign than initially reported. For example, a Seattle woman claimed that a drone had been spying on her through her window, and this caught the attention of the media. But it turned out that the drone was only being used to survey a site for a new building.

I also think that Cooper-Stoke's vague description of drone registration was concerning, namely that she wants to know what people are doing with their drones. It is not clear to me what sort of information would be collected by this registration scheme, and it is also unclear how this would help prevent the invasive use of drones.

While I am all for clearer regulation of drone technology, I think that the danger of private drones invading people's privacy is currently fairly low. Universal registration is far too blunt of an instrument to address the complicated question of regulating drones.

Wyoming Bill Would Regulate Law Enforcement Drones

The AP reports that Wyoming legislators are considering a bill that would regulate law enforcement agencies' use of drones:

Wyoming lawmakers are considering a bill to ban law enforcement use of drones without a warrant. 

Members of the Wyoming Legislature's Joint Judiciary Committee are set to hear a draft bill this week in Laramie. If it's approved, the full Legislature could consider the measure early next year. 

Linda Burt is executive director of the American Civil Liberties Union in Wyoming. Burt says it's important for the state to set limits on the use of drones before they become more prevalent in law enforcement. 

Legislative staffers drafted the bill the committee is set to consider at its meeting Thursday working from a model bill Burt presented to the committee earlier. 

"Basically what it does is it asks that before any law enforcement uses a drone for any kind of searches that they get a warrant based on probable cause," Burt said.

A few other websites have similar versions of this story, but they all seem to be copies of the AP report (although the Washington Times provides its own paraphrasing of the AP report here). Because of this, there are some missing details -- namely, the text of the bill.

After some investigative Google searching, I located the text of the bill -- you can find it here. 

While the bill is not much of a deviation from laws that have been passed and proposed in other states, I have a few comments on the current version.

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.

Why State Legislatures Should Regulate Government Drones

At Slate, Margot Kaminski writes in support of California's AB 1327 which would regulate the government's ability to use drones. From the article:

There are no guarantees of how courts will come out on drone use. Like GPS tracking, it’s a complex issue, and there are old cases giving little credence to the notion that we have privacy rights in public. But the newest Supreme Court cases push back against this, showing a more sophisticated understanding of dragnet digital surveillance and privacy.


One guarantee is that court decisions will take time—and there are costs to waiting for courts to make up their minds. In 2011, the California Legislature passed a bill requiring a warrant for the search of cellphones at the time of arrest. Gov. Brown vetoed it. It took three years for the issue to work its way up through courts, only for the Supreme Court to find this summer in Riley v. California that a warrant is required for exactly that kind of search. The opinion was 9–0. In the meantime, Californians were subject to unconstitutional searches without legal protection.

Alito, writing in U.S. v. Jones, noted that “[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.” I and 40 other law professors—in criminal procedure, privacy, and First Amendment law—have written to Brown in support of AB-1327’s warrant requirement. This is an example of good privacy lawmaking. People are concerned, and the California Legislature is responding.

I support state legislative efforts to regulate drone use because I think that regulating drones would be a dangerous enterprise if left up to the courts. I recently wrote an article where I make this argument in detail. I sent it to some law journals and I was waiting to post it on SSRN, but in light of Governor Jerry Brown's impending decision on whether to veto AB 1327, I have made a last minute, (probably) badly timed (Friday night?) decision to post the paper. It is available here, and 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.

I will likely mention this article again next week at a more reasonable time, but I thought that I should mention it on the blog now. As is the case with any paper or post that I write, comments and criticism are welcome.

Citations to State Drone Laws

In light of my earlier post where I pointed out the number of states that have warrant requirements for government drones, I thought it would be helpful to post a list of citations to state laws regulating drone use.

Thirteen states have passed some sort of law regulating drones, and eleven of them contain provisions requiring law enforcement agencies to obtain a warrant before using a drone.

This post is not an exhaustive collection of citations to every drone law in each state. For now, I will only list citations to statutory provisions that require the government to obtain a warrant before using a drone. I will also include the proper Bluebook citations for North Carolina and Virginia's laws, which are a bit more difficult to hunt down and properly cite.

Here are my citations for state statutes that require law enforcement agencies to obtain a warrant before using drones:

Fl. Stat. § 934.50(3)-(4) (2013); Idaho Code Ann. §21-213(2) (2013); 725 Ill. Comp. Stat. 167/10, 167/15(1)-(3) (2014); Ind. Code § 35-33-5-9(a) (2014); Iowa Code Ann. § 808.15 (2014); Mont. Code Ann. § 46-5-109(1) (2013); Or. Rev. Stat. § 837.320(1)(a)-(b) (2013); Tenn. Code Ann. § 39-13-609(d)(2) (2013); Texas Gov. Code Ann. § 423.002(a)(7) (2013); Utah Code Ann. § 63G-18-103(1)(a) (2014); Wis. Stat. § 175.55(2) (2014).

Those states are Florida, Idaho, Illinois, Indiana, Iowa, Montana, Oregon, Tennessee, Texas, Utah, and Wisconsin.

One caveat: the dates in parentheses after each laws are the dates on which those laws were passed or most recently amended. It is possible (but somewhat unlikely) that states which passed drone laws in 2013 have released a version of their code in 2014, in which case, the correct year to include would be the year of the most recent code release. But since I do not currently have access to a library with up-to-date state codes, I cannot guarantee that all of those "(2013)" parentheticals are technically correct for Bluebooking purposes.

Finally, North Carolina and Virginia have passed moratoriums on drone use, but these laws can only be located in their Session Law form. This form is difficult to cite, since it requires locating the page of the session laws on which the law is listed.

Here are the citations to North Carolina and Virginia's moratoriums on drone laws: North Carolina: 2013 N.C. Sess. Laws. 1040. Virginia: 2013 Va. Acts 1408.

As states continue to pass drone laws, I will return to this post and update it. I will include a note of each update in addition to changing the text of the post. If, over time, it becomes too difficult to keep up with the updates, I will include a note that I have stopped editing this post.

How Many States Require Warrants for Government Drone Use?

In the process of reporting on the California Assembly's approval of a bill that would require law enforcement officers to get a warrant before using drones, The Guardian states:

A total of 13 states have passed some form of legislation restricting the use of drones by public agencies, of which nine have specifically sought to rein in police snooping by requiring officers to seek warrants before using the devices. 

The nine states with warrant requirements are: Florida, Idaho, Illinois, Iowa, Montana, Oregon, Tennessee, Utah and Wisconsin.

The claim that only nine states have warrant requirements is incorrect. In fact, 11 states have warrant requirements. The article fails to mention Indiana and Texas.

Idaho's Sneaky Law on Drones

Before work begins, I am trying to quickly finish up and send out a paper on state regulations of government drone use. Part of this process involves my researching laws restricting drones that states have passed. I have blogged about many of these states, but I do not believe I have addressed Idaho's law until now.

Initially, I thought that Idaho's law regulating the use of drones was fairly restrictive. Here is the text of Idaho's restriction:

(2)(a) Absent a warrant, and except for emergency response for safety, search and rescue or controlled substance investigations, no person, entity or state agency shall use an unmanned aircraft system to intentionally conduct surveillance of, gather evidence or collect information about, or photographically or electronically record specifically targeted persons or specifically targeted private property including, but not limited to: 

(i) An individual or a dwelling owned by an individual and such dwelling's curtilage, without such individual's written consent; 

(ii) A farm, dairy, ranch or other agricultural industry without the written consent of the owner of such farm, dairy, ranch or other agricultural industry.

The law goes on to provide for statutory damages of $1,000 in the event of a violation of the law -- so even if somebody cannot point to personal harm from their being observed by a drone, that person will not need to prove damages in order to obtain a reward.

Gregory McNeal correctly points out that this law is very restrictive of private drone use. In particular, it would prevent private parties from using drones to obtain aerial photographs or information about agricultural industries. McNeal notes that this could prevent the discovery of illegal activities.

The part of the law that caught my attention, however, is that the bill contains an exception to the warrant requirement when the government is engaging in "controlled substance investigations." This means that quite a bit of government drone use will be unrestricted by the warrant requirement. The most likely scenarios in which I can foresee the government using drones is to fly over people's houses and yards, or to monitor the movement of suspects.

If the government uses a drone to look into somebody's yard to see if drugs are being grown there, this would not violate the statute's warrant requirement because this would be part of a controlled substance investigation. And if the government is tracking the movements of somebody suspected of trafficking drugs, the statute would not require the law enforcement agency to obtain a warrant before using drones to track that person's movements.

While the Idaho legislature may claim that it has taken action to curtail the government's use of drones, the careful wording of the bill means that law enforcement still has a great deal of leeway to use drones in criminal investigations.