How to regulate police use of drones

The George Floyd protests this summer were enormous, perhaps the biggest wave of protests to roll across the United States since the 1960s. They were also, almost indisputably, the most surveilled protests in American history. While police are using many tools to monitor the protests and the protesters, from social media analytics to body cameras, none are as visible—and as controversial—as the small drones that law enforcement officers buzzed over protests in 2020.

Despite American law enforcement’s embrace of aerial surveillance by drone, there is no national framework governing their use and how police make use of the data collected by the thousands of drones being flown by thousands of the machines across the United States. In the absence of a federal framework for governing the technology, cities and states have written a patchwork of rules and regulations for police drone use that, taken together, show what a more transparent and just set of laws governing police aerial surveillance might look like.

The police embrace of drones

Drones provide what law enforcement likes to call “situational awareness”: a clear birds-eye perspective on potentially volatile situations that’s much less expensive and complex to operate than a manned helicopter. Law enforcement agencies have used this argument to justify flying drones over everything from alleged drug deals to homeless encampments to the recent protests against racist police violence. They’ve also used drone footage to make arrests: In Arizona in early July, police used drone video to justify arresting three Black Lives Matter protesters, who they say stopped traffic.

Some police agencies claim that aerial surveillance, via drone or other means, is less intrusive and less likely to result in deadly altercations with a distrustful public than patrolling on foot. However, this argument ignores that drones hold enormous—albeit unsettled—symbolic meaning in our society. They are a highly visible, buzzing, blinking way to remind people that they’re being watched. The limited public opinion research that exists on drones shows that Americans hold ambiguous views on the technology that are highly dependent on how they are being used and one’s political affiliation. Worryingly, one recent study found that participants were more likely to approve of law enforcement using drones over primarily African-American neighborhoods than they were to approve of drone flights over primarily white neighborhoods. Critics worry that the presence of drones and other means of aerial surveillance will have a “chilling effect” on the public, preventing people from exercising their legitimate right to peaceful protest.

What’s more, police drones are a highly effective way for law enforcement to “mark” the aerial territory over news-worthy events. While plenty of journalists and activists use drones to collect their own aerial information, they’re often reluctant to fly when there’s a chance they could be accused of interfering with a drone or a helicopter operated by police.  

Where did all these police drones come from, and why are we hearing so much about them now? While consumer drones became widely available in the early 2010s, strict U.S. regulations around civilian drone use at first kept police from using drones widely, with limited exceptions (such as in Miami-Dade county in 2010). As drones grew hugely popular among consumers, the prospect that police might use the technology as well caused serious concern among privacy and civil liberties activists. Accordingly, a number of locales preemptively banned police drones. That all changed in 2016, when the Federal Aviation Administration passed the  “Part 107” rule, which finally opened up American airspace to non-hobby drone use. Police drone use promptly exploded, with a record number of agencies acquiring their own drones in 2017. As of March 2020, per data collected by Bard College researchers, at least 1,578 state and local public safety agencies in the United States had acquired drones, and 70% of those agencies were law enforcement bodies. The majority of these police drones are small models designed for the consumer market mostly produced by Chinese drone-maker DJI.

A patchwork of drone regulations

While the FAA is in charge of regulating drones in the United States, the agency has been decidedly hesitant toward writing rules that pertain to privacy or aerial surveillance. In the absence of any such overarching rules, regulating the privacy implications and law enforcement use of drones has fallen to local authorities. This has created a confusing and complex patchwork of rules around how police can use drones, rules that differ markedly from state to state. There’s one thing civil liberties advocates and privacy specialists tend to agree upon: Police drones aren’t regulated nearly strictly enough, and the majority of U.S. states still have don’t have comprehensive rules on the books governing their use. While police protest that drone regulations will discourage potentially valuable police drone use, civil libertarians argue that’s exactly the point. In the absence of clear rules or guidelines, police drone use will almost inevitably expand to fit every void. And as police find new ways to use drones, regulations are required to justify their expanded use.

The first and most obvious course of action in regulating police use of drones is to ban the technology entirely, a proposal a number of lawmakers and activists are currently pushing in New York City. As police have rolled out drone programs, cities have received them warily. In 2013, police in Seattle were on the verge of launching a drone program but abandoned it under public pressure, a pattern that repeated itself the following year in Los Angeles. (Elsewhere, in Washington state police use of drones is widespread.)

There are good reasons why police might want to fly a drone, like search and rescue operations or disaster response, and bans threaten to take an otherwise useful tool off the table. Rather than banning the technology outright, drone bans might include explicit, specific exemptions that permit drones to be used only for activities that have nothing to do with criminal investigations—while still requiring police departments to adhere to clear rules around privacy and data security. Banning certain drone uses are another approach. Some states, like Vermont, have explicitly banned the use of drones to collect data on citizens who are “exercising their constitutional rights of free speech and assembly.”

Another increasingly popular approach to regulating police drones is requiring warrants for their use. Today, approximately 18 states have laws that mandate that police acquire a warrant before they use drones. If police fail to comply, the drone data they collect will be made inadmissible in court. Some states with these rules, like Virginia, exempt police from the warrant requirements if they’re using drones for non-law enforcement purposes, like taking photographs of accident scenes, for disaster response and for assessing traffic levels. However, some such policies include loopholes that may make it relatively easy for police to justify wider drone use. A new Minnesota law, for example, permits police to use drones to collect data in public areas if “there is reasonable suspicion of criminal activity,” an exemption at risk of being broadly applied.

Accountability, both to government and to the public, must be a key element of drone regulations. Some states, like Vermont, Virginia, and Nevada require that police publish annual reports on how they’ve used drones, and why. These reports should be sought on a more regular basis than once a year, considering how often police use drones today—and they should be made easily available to the public, not buried in official records. Technologically, it’s not a heavy lift. Drones’ onboard flight control computers store records of every flight they take, and it’s easy to pull these records off the aircraft and post them online in the form of digital maps (as police users of Dronesense flight records software discovered in late 2019 after a data leak). In the interest of public transparency, the Chula Vista Police Department in California already publishes public records of their drone flights and their overall drone usage. This is a smart approach, and one that police departments concerned with public distrust of drone tech would do well to emulate, though few are likely to do so voluntarily.

Police drone regulations also need to consider what happens to all the data police aircraft collect. In July of this year, police in Minnesota used a drone to capture footage of topless and nude sunbathers at a small lakeside beach, in the hope of issuing tickets for illegal behavior. Data like this is obviously sensitive, and police departments need clear rules around who gets to see it and how those viewers are trained. Of the states that do have clear laws around police drones, many have explicit language around drone data. Utah, for example, requires that drone data be destroyed “as soon as reasonably possible” (with a number of exemptions). Drone regulations should include clear rules around who gets to see drone data, and clear punishments and penalties if police drone data is misused or leaked.  

As police use of drones has expanded, there has been a surprising amount of attention given to banning the use of facial-recognition technology on drones. Minnesota, for example, has explicitly banned the technology, but these are rules governing a phenomenon that does not yet exist. Despite what marketing copy from some police tech companies might want you to believe, there’s essentially no evidence that drone facial recognition is technologically possible today. Future-proofing laws against technological advances is a good idea, but effectively regulating the police surveillance that is happening today is a far more immediate priority.

One surveillance tool among many

Regulating drones is important, but it’s worth remembering that drones are just one of many surveillance technologies that police are using today, from mobile phone tracking tools to facial recognition (from the ground) to persistent manned aircraft surveillance over the skies of Baltimore. And considering the implications of using drones to surveil protests raises questions about other forms of aerial surveillance. Why are police permitted to scramble potentially dangerous and expensive-to-operate manned helicopters on a regular basis, and what happens to the information that those aircraft collect?

Instead of just focusing on drones, cities and states should consider defunding and better regulating all aerial surveillance programs, whether the watching is being done with a helicopter, an airplane, or a drone.

Faine Greenwood is a consultant and writer on civilian drone technology.