By Yechiel Lefkowitz
Police departments throughout the country are relying on drones more than ever before.[1] Law enforcement agencies across the country have found tremendous value in surveillance drones.[2] Recently, much media and watchdog attention has been given to the pitfalls of possible government overreach with such programs.[3] There are several legal issues with drone surveillance programs.
Drones may be a breach of privacy under the Fourth Amendment, which prohibits unreasonable searches.[4] However utilizing the Fourth Amendment in drone surveillance is not an easy route in federal court, with courts likely needing to do a case-by-case assessment of the surveillance, and compare it to precedent cases of helicopter and airplane surveillance.[5] While spy drone overflight of private property may be a breach of privacy, drone surveillance of public areas is more debatable.[6]
Similarly, critics of drone surveillance programs claim that drones are often trespassing, flying above private property but well below airspace used by manned aircraft.[7] Nevertheless law enforcement have significant workarounds available without ever entering private property, for example, flying a drone above the street. It will also be exceedingly difficult to prove that a surveillance drone was over private property.
Another legal issue with spy drones is the potential for discriminatory use. During the 2023 J’ouvert celebration in New York City, the New York Police Department (NYPD), explicitly stated that drones would be used to monitor the celebration, including private parties.[8] Civil rights activists expressed concern that the police surveillance would violate privacy in “backyards and bedrooms”.[9] Although drone surveillance may be directed towards minorities, it is likely difficult to prove. As long as a drone is several hundred feet above the ground, a minority would be hard pressed to prove that the drone was specifically targeting them.[10]
One solution would be to legislate for limited drone use by law enforcement. Perhaps unsurprisingly, while many states have such laws, New York State does not.[11] While a ground-up movement to create new legislation may be a good idea, it may take years for such legislation to become law, with the FAA regulation governing drone identification being announced in 2019 but only coming into law in September 2023.[12] In addition, attempts to regulate drones have met resistance from some drone enthusiasts in court.[13]
Another possible solution may be to utilize current drone safety regulations requiring drones to have Remote ID.[14] The FAA now requires all drones over .55 of a pound to have Remote ID, a digital broadcasting and location device.[15] The FAA, concerned by numerous unsafe breaches of sensitive airspace, requires most drones to have Remote ID, to be able to track small drones.[16] Conversely, such regulation and future regulation of this type would make it significantly easier for an ordinary citizen to detect a nearby drone.[17] In New York City, where a permit is required to fly a drone, tracking down the drone operator should be much easier.[18] And if the drone can be detected, then, “the first step to solving a problem is knowing that you got one.”[19]
[1] Jake Offenhartz, Police Drones Alarm Privacy Activists, The Pantagraph, Sept. 3, 2023 at A15.
[2] Rebecca L. Sharf, Game of Drones: Rolling the Dice with Unmanned Aerial Vehicles and Privacy, 2018 Utah L. Rev. 457, 458 (2018).
[3] Offenhartz, supra note 1.
[4] Sharf, supra note 2, at 458-502.
[5] Id. at 488 (describing lower courts struggle to define the “reasonable element” in privacy violations).
[6] Id. at 497 (positing that an aircraft spying from public airspace is “reasonable”).
[7] See generally Florida v. Riley, 488 U.S. 445, 455 (1989); Is There a Minimum Altitude Requirement for Aircraft Flying Over Residential Areas?, Denver Int’l Airport, https://www.flydenver.com/about/administration/noise_management/FAQs/there_minimum_altitude_requirement_aircraft_flying_over_residential (last visited Sept. 26, 2023).
[8] Offenhartz, supra note 1.
[9] Id.
[10] Sharf, supra note 2, at 458.
[11] Drone Laws by State, FindLaw, https://www.findlaw.com/consumer/consumer-transactions/drone-laws-by-state.html (July 12, 2021).
[12]Christine Shang, Recent Developments in Aviation Law, 87 J. Air L. & Com. 231, 265-67 (2022).
[13] Kara Murphy, Remote ID for Drones Ruled Constitutional. Is That a Good or Bad Thing for Drone Owners? Digital Photography Rev. (Aug. 2, 2022), https://www.dpreview.com/news/3642716941/remote-id-for-drones-ruled-constitutional-is-that-a-good-or-bad-thing-for-drone-owners?
[14] 14 CFR 89.110 (2023).
[15] Id.
[16] Heathrow Airport: Drone Sighting Halts Departures, BBC News (Jan. 8, 2019), https://www.bbc.com/news/uk-46803713.
[17] Who Can See Data Broadcasted From My Drone?, Drone Remote ID, https://drone-remote-id.com/ (last visited Sept. 26, 2023).
[18] NYPD Announces New Rules Concerning Unmanned Aircraft, NYC (July 21, 2023), https://www.nyc.gov/site/nypd/news/p00087/nypd-new-rules-concerning-unmanned-aircraft#:~:text=Prior%20to%20launching%20or%20landing,Department%20of%20Parks%20and%20Recreation.
[19] Paraphrasing Zig Ziglar, BrainyQuote, https://www.brainyquote.com/quotes/zig_ziglar_617848 (last visited Sept. 26, 2023).