Drones over Florida? Part 2: federal legislation could limit law enforcement use

02/25/13 Janelle Irwin
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As the Federal Aviation Authority prepares to open six test sites for unmanned aircraft, or drones, members of Congress are reintroducing legislation that would regulate their use. Last week, we brought you the first part of our series on drones focusing on proposed regulations in Florida. The federal legislation would provide privacy security in much the same way. The proposal is welcomed by anti-drone activists like Nick Mottern with the group Know Drones who worry the technology is too invasive.

“You have development in drone surveillance that will include not just one or two individuals, but there could be whole groups of people as in a street scene or even drone cameras that could take in several blocks watching people not only as if they were on a camera at a traffic light, but watching them around the clock.”

The Preserving American Privacy Act filed by Republican Texas member of Congress Ted Poe and California Democrat Zoe Lofgren would require law enforcement agencies to have a search warrant to use a drone. That would protect people in situations where personally identifiable information may be discovered in a place where they don’t expect to be surveilled. During a speech recorded at the National Press Club in Washington D.C. earlier this month by Free Speech Radio News, Poe referenced a recent Supreme Court ruling that found the use of a GPS tracking device on a suspect’s car in New York was unconstitutional.

“Justice Alito’s recent decision and comment about expectation of privacy said that it changes from time to time based upon technology what a person – the reasonable person’s, whoever that is, expectation of privacy does change. So, we have to factor that in as well when we use the phrase ‘reasonable expectation of privacy.’”

But even though the legislation calms some privacy concerns among critics, some legal experts think the provision might be too vague. Charles Rose is a professor at Stetson University College of Law who has a background in military law.

“Personally, hey I don’t think it’s appropriate for a drone to be flying through my back yard taking pictures of what I may or may not be doing or what I may or may not have there, but if society as a whole objectively thought, well, yeah that’s reasonable, then you could have a problem.”

Rose suspects courts would err on the side of security and not privacy and contends that to protect privacy rights, federal and state legislation needs to address the conundrum. During his speech at the National Press Club, the bill’s sponsor, Poe went on to say that ambiguity is why Congress should make sure regulations are on the books.

“It’s my opinion that Congress should take the lead on this issue rather than wait for cases to occur and those cases end up in different courts throughout the country and federal judges make the determination whether the drone and what the drone did was constitutional or unconstitutional based on the FAA permit.”

While the Preserving American Privacy Act is a start, St. Petersburg tea party activist and city council hopeful David McKalip wants local governments to ban their use entirely.

“Well, I think people expect when they go out in public to have a nice day, they expect to have some nice people to hang out with and some activity, but they don’t expect to look up and see a robot flying over their head with a camera that has a police label on it. So, the only reason is freedom. Freedom is something that we are guaranteed when we are born and no government should take it away based on some fantasy vision that they are going to make us more secure.”

The use of drones for surveillance offers some of the same benefits to police as helicopters with high-powered cameras. According to documents made public by the Electronic Frontier Foundation, three law enforcement agencies in Florida have past or current authorization from the Federal Aviation Authority to fly drones. The Orange County Sheriff’s Office has permission to test them, but can’t use them in real situations yet. Their Certificate of Approval from the FAA has some information redacted based on exemptions that protect the agency from disclosing information that could inhibit investigations. Polk County received approval in 2009, but decided not to renew it. The Miami-Dade Police Department is the only agency in the state that can currently use drones for actual incidents. Aviel Sanchez is the Lieutenant in charge of the agency’s aviation department.

“We have to have a perimeter for the scene. So, it’d be an actual incident. We’re not just freely flying this. So, any concerns about us just free flying, trying to surveil our citizens – we just cannot do it. We have to file a flight notification with the FAA that we’re going out to a scene and that we’re going to fly in that location so that they can put out a notice to airmen letting them know that we’re in that location and we’re flying.”

That’s why Sanchez says the Miami-Dade Police Department is watching state and federal legislative proposals. The unmanned aircraft are smaller, cheaper and easier to deploy contributing to the number of active certificates of approval for drone use to more than double since 2009. Sanchez said the legislation is unnecessary.

“It really doesn’t do anything for the public that isn’t already safeguarded by existing federal, state and local laws. Our duty to preserve the citizens’ rights including their constitutional right to privacy – we’re not here to violate anybody’s privacy concerns.”

Sanchez says even though the police department hasn’t had to use a drone yet, it’s a good tool to have and there is no reason for people to worry that their privacy rights may be affected.

“It’s almost like if you were hearing a lawn mower flying overhead and we’re limited as to the distance and the height that we can fly at. So, we’re limited to flying it at 300 feet in altitude or less and within line of sight of the police officers. So, if you saw our drone flying, you’re going to look and you’re going to see police within proximity and it’s audible and visible enough at 300 feet that you’re going to know we’re there. So, any concerns about big brother watching or the police trying to keep tabs on the citizens. You’re going to know it’s there – it just can’t sneak up on you.”

The federal legislation would also prohibit law enforcement agencies from arming unmanned aircraft. Certain exemptions for border security and emergency situations would apply, but those details haven’t been finalized yet. The bill is currently in the House Judiciary Committee where members will vote whether to send it to the full Senate or House. That vote has not been scheduled.

Next in this series: we’ll look at other uses for drones by private individuals and companies and how pending state and federal legislation would impact those industries.

note: this is a longer version of the story than we played on air.

Orange County Certificate of Approval for drone Use by

FAA certificate of authorization for drone use in Miami-Dade county by Janelle Irwin

FAA approval for drone use in Polk County by

Drone fact sheet from Miami-Dade Police by

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