Drone Technology in Law Enforcement: Legal, Ethical Issues

Introduction

The emergence of drone technology has been rapid and continues to advance exponentially. While drones can certainly be used for nefarious purposes against government personnel, property, and resources, it is worth considering how this same technology might be used within law enforcement as an offensive tool directed at the public. As this area continues to grow, many questions and concerns are being raised regarding key issues such as the legality of utilization, Fourth Amendment implications, and ethical considerations. Additionally, given the current degree of distrust between police and communities, the addition of what is sometimes viewed as "spy tech" only further deteriorates that trust. As drone technology continues to permeate law enforcement, there needs to be a great deal of deliberate and well-thought-out strategy regarding its utilization. The rapid expansion of drone technology provides an opportunity for law enforcement to add significant capability to their departments, but there are critical legal, ethical, and procedural issues that must be addressed prior to integration.

Benefits of Drone Technology

Drone technology offers law enforcement an opportunity to monitor more broadly, adopt an automated approach to policing, conduct search and rescue missions more efficiently, pursue criminal offenders with greater aerial facility, and engage in surveillance operations, among many other potential uses (Enemark, 2021; Heen et al., 2018). Although drones have already been incorporated into hundreds of law enforcement and emergency agency departments throughout the US, their potential usage remains broadly theoretical at this point (McGuire, 2021; Sinclair, 2018).

Nonetheless, a real-world example of how drone technology can facilitate law enforcement is the recent looting of Union Pacific boxcars in Los Angeles County. Union Pacific has begun to explore the use of drones to better protect its train cargo in LA County after criticizing the District Attorney's Office for not doing enough to prosecute thieves (Durden, 2022). The belief on the part of Union Pacific is that drone technology can help the company and law enforcement officers maintain closer watch on precious cargo and provide aerial cover of operations. With a bird's-eye view, law enforcement and security personnel can be alerted to trespassing and respond more quickly before significant cargo is lost. Union Pacific estimated that up to 90 containers per day on average over the past year had been compromised by thieves (Durden, 2022). With drone technology, the company and law enforcement could crack down on looting more effectively.

Yet drones offer even more benefits than crime monitoring. As Dwyer-Moss (2018) notes, drones "can be used to perform search and rescue operations, to monitor natural resources, to assist in wildlife conservation efforts, to minimize risks in law enforcement activities, or even to conduct traffic reports" (p. 1049). Moreover, drones are a relatively inexpensive way to conduct surveillance—far less costly than flying a helicopter, and more efficient as well (Dwyer-Moss, 2018). Still, legal, ethical, and procedural issues remain and must be acknowledged. The benefits of drone technology are one thing, but public acceptance of drone usage by law enforcement is quite another and must be examined more closely to understand the best way to integrate drone usage into modern policing.

Legal Issues

One legal issue relating to drone usage by law enforcement is Federal Aviation Administration (FAA) compliance. The FAA formerly required law enforcement agencies to staff trained pilots to operate drones; while that requirement has been lifted, others still exist regarding the operation of drones beyond the line of sight (Heen et al., 2018). Although hundreds of law enforcement and emergency agencies now use drone technology in their operations, these agencies must still comply with FAA rules and regulations. These rules have been relaxed in recent years, making it more likely that the number of agencies utilizing drones will increase (Heen et al., 2018). The problem with FAA regulation is that the FAA is processing hundreds of thousands of applications for drone registration, leaving it with very little time or resources to examine whether drones may compromise or infringe upon the privacy rights of individuals (Dwyer-Moss, 2018).

The most pertinent legal issue involving drone technology in law enforcement, however, is not FAA compliance but rather the Fourth Amendment. US v. Jones established that the extensive use of GPS technology on a person's car constitutes a search and trespass, since the agency did not have permission to access the private individual's vehicle. Riley v. California established that law enforcement officers need a warrant to search the digital contents of a private person's cell phone (Dwyer-Moss, 2018). As modern society becomes increasingly technological, the line between what is private and what is public is blurred, and the question becomes: what rights do private persons still possess when in the public view, and how closely may law enforcement monitor them using available technology? Of the thirty-three states that have passed legislation regarding drone usage, only six have written laws pertaining to the Fourth Amendment (Gruhl & Combs, 2019). This suggests that states have thus far not engaged to any great extent with the right to privacy as it relates to law enforcement drone implementation.

California v. Ciraolo offered some clarification on the legality of surveillance: it found that law enforcement is not prohibited from conducting surveillance on a private person within the confines of his own yard, since the yard is within view of the public and the Fourth Amendment does not guarantee a right to privacy in such a case (Dwyer-Moss, 2018). Similarly, in Dow Chemical Co. v. United States, the Court held that aerial surveillance may be conducted legally by the Environmental Protection Agency. Dow had sued, alleging that the EPA had violated its privacy rights under the Fourth Amendment by using helicopter surveillance to monitor its grounds after Dow refused an in-person inspection (Dwyer-Moss, 2018).

Where the question of drone surveillance becomes complicated is here: drones are more efficient at hovering silently and nearly undetected, whereas officers passing a yard on a street or agents using a helicopter or plane are highly visible. Drones have the ability to "spy" in a way that human observers—even those in helicopters—do not. Thus, drone technology has the capacity to violate privacy rights in a manner analogous to the use of GPS tracking systems on cars or the unauthorized access of data on a cell phone. A drone is essentially a small camera with wings that can encroach into a person's private sphere without being observed. The perception of those who oppose drone usage by police is that these flying cameras allow agents to physically intrude upon a person's private space or property. Whether drones technically constitute a violation of privacy rights is something courts are still working to discern (Greiner, 2021; Ringrose & Ramjee, 2020).

A recent case out of Long Lake Township, Michigan, gets to the heart of the legal matter of drone usage as it relates to privacy rights. A couple was sued in civil court for allegedly violating a township zoning ordinance related to operating an illegal junkyard. The township used photographic evidence obtained by flying a drone over the couple's property over a series of years. The couple moved to suppress the evidence, arguing that it came from an illegal search. The court initially denied the motion, noting that aerial photographs had been accepted as evidence in prior cases. The couple appealed, arguing that drone usage is fundamentally different from collecting footage via airplane or helicopter: drones fly at a lower altitude and are equipped with high-resolution cameras. Planes flying overhead are a reasonable expectation, they argued, and therefore not a violation of the Fourth Amendment; by contrast, "a person can reasonably anticipate being observed from the air by a fixed-wing aircraft, but aerial surveillance from a drone flying over private property and taking photographs is not a reasonable expectation" (Greiner, 2021). The court ruled in the defendants' favor, stating that "landowners are still entitled to ownership of some airspace above their properties, such that intrusions into that airspace will constitute a trespass no different from an intrusion upon the land itself" (Greiner, 2021). Furthermore, the court noted that Michigan law forbade the use of drones to violate a reasonable expectation of privacy and that "any reasonable person would have expected a low altitude drone overflight to be trespassory and exceptional, whether the drone flew as high as a football-field length or flew directly up to an open bathroom window" (Greiner, 2021). The photographic evidence was therefore not permitted. The court also concluded that warrantless surveillance was unnecessary in the first place, and that if the township had sufficient reason to suspect the couple of operating an illegal junkyard, it should have been able to persuade a court to grant a warrant for a search.

What this case illustrates is that drone usage may, for the time being, represent a breach of one's reasonable expectation of privacy. In time, this expectation may change—especially as drone usage becomes more normalized, as is already happening in counties like Los Angeles. However, as Gruhl and Combs (2019) point out, courts have "shown reluctance to allow more extensive or sophisticated surveillance, especially with new technology, without a warrant" (p. 61). The legal usage of drones by police, and where lines should not be crossed, will therefore depend on state legislation as well as federal FAA regulation. As the public makes its voice heard, state legislation may become more restrictive or accommodating, depending on the community demographic (Anania et al., 2019; Sakiyama et al., 2017).

The Fourth Amendment is not the only constitutional right at stake. A wary public may feel that drones will also be used in violation of the First Amendment right to assemble. Given that protests and public gatherings have grown in the US since the lockdowns of 2020, it stands to reason that law enforcement may turn to drone technology for crowd control purposes. How does this fit with the legal right to assemble—especially if those in an assembly feel that drones are being used to spy on or harass them? Moreover, what happens when drones become armed, and armed citizens begin targeting drones from a stand-your-ground defense standpoint? The legal conundrums that may arise from these possibilities are numerous, and the risk of an increase in anti-police sentiment could grow exponentially.

Conclusion

Drone technology offers advantages to both the public and law enforcement in terms of combating criminal activity: drones can be used in search and rescue operations, in surveillance, in both reactive and proactive law enforcement, and numerous other operations. Yet, even as drones are integrated into policing, widespread acceptance by the public as a whole is quite another matter. Depending on the demographic, culture, and political affiliation of the community, some will support drone usage and others will not. It is up to law enforcement to craft a suitable public relations campaign that justifies its use of drones, clarifies how drones are to be used in police work, and ensures the public that transparency and accountability will be maintained.

Trust is vital to police work. So long as the public trusts and supports its police, law enforcement and the communities they serve can enjoy constructive relations. It is when the public feels that law enforcement is infringing on its rights—particularly those pertaining to the Fourth Amendment, but also including the right to assemble—that the risk of blowback arises. Law enforcement agencies should therefore proceed with caution and not push for too rapid an integration of drone technology into policing.

Proper steps should be taken to acquaint the public with the need for drone technology, how it will help the community fight against crime, what the limitations of its usage will be, and how police themselves will be accountable to the public for its use. Drone technology is not inherently harmful to the public good—but its implementation must be handled carefully, transparently, and with genuine deference to the communities it is meant to serve. Drones should not be used to discriminate or as instruments of racial profiling, and the public is far more receptive to their use in reactive rather than proactive policing contexts.

References

Anania, E. C., Rice, S., Pierce, M., Winter, S. R., Capps, J., Walters, N. W., & Milner, M. N. (2019). Public support for police drone missions depends on political affiliation and neighborhood demographics. Technology in Society, 57, 95–103.

Bouafif, H., Kamoun, F., Iqbal, F., & Marrington, A. (2018, February). Drone forensics: Challenges and new insights. In 2018 9th IFIP International Conference on New Technologies, Mobility and Security (NTMS) (pp. 1–6). IEEE.

Durden, T. (2022). Union Pacific bashes LA's social justice reform, threatens to leave city amid soaring train thefts. Retrieved from https://www.zerohedge.com/political/union-pacific-bashes-las-social-justice-reform-threatens-leave-city-soaring-train-thefts

Dwyer-Moss. (2018). The sky police: Drones and the fourth amendment. Albany Law Review, 81(3), 1047–.

Enemark, C. (2021). Armed drones and ethical policing: Risk, perception, and the tele-present officer. Criminal Justice Ethics, 124–144.

Greiner, J. (2021). Strictly legal: Drone footage violates privacy. Retrieved from

Gruhl, J., & Combs, M. (2019). Police drones: Coming to a neighborhood near you. National Political Science Review, 20(1), 56–72.

Heen, M. S., Lieberman, J. D., & Miethe, T. D. (2018). The thin blue line meets the big blue sky: Perceptions of police legitimacy and public attitudes towards aerial drones. Criminal Justice Studies, 31(1), 18–37.

Jensen, T., Khan, M. M. H., Albayram, Y., Fahim, M. A. A., Buck, R., & Coman, E. (2020). Anticipated emotions in initial trust evaluations of a drone system based on performance and process information. International Journal of Human–Computer Interaction, 36(4), 316–325.

Klauser. (2021). Policing with the drone: Towards an aerial geopolitics of security. Security Dialogue.

McGuire, M. R. (2021). The laughing policebot: Automation and the end of policing. Policing and Society, 31(1), 20–36.

Ringrose, K., & Ramjee, D. (2020). Watch where you walk: Law enforcement surveillance and protester privacy. Calif. L. Rev. Online, 11, 349.

Rosenfeld, A. (2019). Are drivers ready for traffic enforcement drones? Accident Analysis & Prevention, 122, 199–206.

Sakiyama, M., Miethe, T. D., Lieberman, J. D., Heen, M. S., & Tuttle, O. (2017). Big hover or big brother? Public attitudes about drone usage in domestic policing activities. Security Journal, 30(4), 1027–1044.

Schwartz, S. C. (2017). Big brother or trusted allies: How the police can earn community support for using unmanned aircraft. Naval Postgraduate School Monterey United States.

Sinclair, M. (2018). Proposed rules to determine the legal use of autonomous and semi-autonomous platforms in domestic US law enforcement. NCJL & Tech., 20, 1.

Annotated Bibliography

Anania, E. C., Rice, S., Pierce, M., Winter, S. R., Capps, J., Walters, N. W., & Milner, M. N. (2019). Public support for police drone missions depends on political affiliation and neighborhood demographics. Technology in Society, 57, 95–103.

Anania et al. (2019) show that drone usage by police is not universally accepted by the public but rather that acceptance hinges upon the political affiliation, culture, and demographic of the community. The study is notable because it reveals that privacy concerns are a primary issue in some communities regardless of political identification, but that drone usage is accepted more when employed over African American communities than over white communities. This suggests that a segment of the wider public wants to see police take a more aggressive surveillance approach in Black communities where white communities perceive the greatest risk of crime to exist.

Bouafif, H., Kamoun, F., Iqbal, F., & Marrington, A. (2018, February). Drone forensics: Challenges and new insights. In 2018 9th IFIP International Conference on New Technologies, Mobility and Security (NTMS) (pp. 1–6). IEEE.

This study by Bouafif et al. (2018) examines how drones used for illegal activities might be analyzed in forensics for uncovering important data or information. The study highlights an area that has not received much attention in drone policing scholarship—namely, how data stored on drones may represent a risk factor. The study provides insights into how police might use forensics to recover data from captured drones but does not address the risk of police drones being captured by members of the public or by domestic actors. This is an important two-way concern: if police can use forensics to recover data from enemy drones, others may be able to capture police drones and access the data those drones have collected.

Dwyer-Moss. (2018). The sky police: Drones and the fourth amendment. Albany Law Review, 81(3), 1047–.

Dwyer-Moss (2018) notes that drones were introduced into the war on terror shortly after September 11, 2001, and that they soon thereafter entered into usage on the domestic front, particularly within the context of border patrol. By 2012, the Los Angeles County Sheriff's Department was using drones to monitor the entire city of Compton, including following cars and zooming in on individuals. This development opened the door to debate about drone usage and the privacy rights of people under the Fourth Amendment. The author reviews how privacy rights have been protected and interpreted in the past with regard to surveillance technology used by police, concluding that drones represent a new territory in surveillance that is not yet completely clear in light of the Fourth Amendment.

Enemark, C. (2021). Armed drones and ethical policing: Risk, perception, and the tele-present officer. Criminal Justice Ethics, 124–144.

Enemark (2021) describes the ethical parameters for using armed drones in policing, explaining the need to define necessity, proportionality, and precaution. The author shows that the problem of police militarization against the public is an ethical issue that must be considered, and that police use of force is the central ethical component to untangling this issue. The author distinguishes between police ethics and military ethics but acknowledges that the use of armed drones blurs the two concepts. The main principles of necessity, proportionality, and precaution play the biggest role in determining the extent to which the technology can be applied morally. The author also points out the risk of escalation that might occur if armed drones are used against the public, and concludes that it is difficult to reconcile armed drone usage with the peacekeeping mission of the police.

Greiner, J. (2021). Strictly legal: Drone footage violates privacy. Retrieved from

Greiner (2021) provides a summary of a recent court case in Michigan in which drone footage was submitted as evidence against a couple accused of violating a township's laws regarding illegal junkyards. The couple moved to have the evidence dismissed on the grounds that it was obtained in violation of their Fourth Amendment rights. The court initially denied the motion, but the couple appealed. The appellate court agreed that drone surveillance was a violation of privacy rights and that the township should have obtained a warrant through the court to conduct a search of the property in question. This source illustrates that drone usage remains a legally contested and controversial topic.

Gruhl, J., & Combs, M. (2019). Police drones: Coming to a neighborhood near you. National Political Science Review, 20(1), 56–72.

Gruhl and Combs (2019) stress that the use of drones in policing in African American communities could further strain the already fragile relationship between police and the African American population in the US. The sense of being over-policed and subjected to racial profiling is already prevalent in African American communities, and using police drones in these same communities would only aggravate these feelings. Gruhl and Combs (2019) apply critical race theory to the problem of policing and drone usage, highlighting the dangers to civil society and the risks of blowback should police drones become more prevalent in certain communities.

Heen, M. S., Lieberman, J. D., & Miethe, T. D. (2018). The thin blue line meets the big blue sky: Perceptions of police legitimacy and public attitudes towards aerial drones. Criminal Justice Studies, 31(1), 18–37.

Heen et al. (2018) show that as far as the public is concerned, the ethical use of drone technology depends upon its application and intent. Privacy concerns remain very much an issue, and drone usage that threatens to invade the privacy of people even in public spaces represents a moral line for many. The majority of the public views drone usage for routine policing activities—such as monitoring or crowd management—as ineffective. Using drones for surveillance purposes, moreover, represents a slippery slope that could devolve into a totalitarian police state. The public, by and large, is not comfortable with such an outcome.

Jensen, T., Khan, M. M. H., Albayram, Y., Fahim, M. A. A., Buck, R., & Coman, E. (2020). Anticipated emotions in initial trust evaluations of a drone system based on performance and process information. International Journal of Human–Computer Interaction, 36(4), 316–325.

Jensen et al. (2020) examine the degree to which emotions play a factor in how automated technology and drones are received by the public. They find that distrust can become a very dominant feeling when a person perceives automated technology or drones as inefficient or inferior to human-provided services. This study is important for policing and drone usage because if the findings hold true, there is likely to be a significant degree of negative emotion from the public toward automated policing technology. It is not just a matter of appealing to the public's cognition; it is also a matter of considering emotional reactions, which are likely to be among the most significant drivers of public acceptance or rejection of drones in society.

Klauser. (2021). Policing with the drone: Towards an aerial geopolitics of security. Security Dialogue.

Klauser (2021) shows in a study of Swiss policing that drones open up the airspace in a positive way for policing operations but that there are limitations as well. The use of drones in airspace also affects how police operate on the ground. Police may become more dependent upon drone technology in the future, regarding aerial mobility as increasingly ascendant in police work. Drones constitute a type of air power never before realized in policing—one that raises issues of security and surveillance that have yet to be fully explored in the literature. The researcher suggests that more scrutiny needs to be given to the geopolitics of drone usage from the perspective of air power superiority.

McGuire, M. R. (2021). The laughing policebot: Automation and the end of policing. Policing and Society, 31(1), 20–36.

McGuire (2021) identifies the arrival of drone technology as the beginning of the end of traditional policing. Police work will increasingly become automated in the future, using facial recognition, surveillance technology, and drones to monitor the public and enforce the law. The result is that an Orwellian, militaristic police state may be on the horizon. This will in turn lead to a breakdown of accountability and legitimacy within policing, particularly as the public encounters less and less of the human face of law enforcement. While the author acknowledges that AI can be helpful in performing programmed functions and removing human error from procedures where bias acts as a risk, the author also laments that removing the human from the act of policing can cause a deep fissure in the police-community relationship.

Ringrose, K., & Ramjee, D. (2020). Watch where you walk: Law enforcement surveillance and protester privacy. Calif. L. Rev. Online, 11, 349.

Ringrose and Ramjee (2020) emphasize that new drone technology will enable police to suppress protests more efficiently but that this comes with a clear social cost: political and social dissent will be removed from the public sphere. Moreover, racism and discrimination are likely to be motivating factors in the use of increased technological surveillance—just as they have historically been motivating factors in police action against dissenters. The problem that drones represent is not so much in the technology itself but in the system that will use it: a system opposed to free expression that looks to criminalize lawful behavior. Drone surveillance will be used by police as a way to further curtail the constitutional right of citizens to assemble and make their voices heard through protest. As drone surveillance increases, public pushback will also likely increase, or else the public will find itself in an automated police state with few options for self-assertion. In short, the authors identify this push toward a surveillance state as a threat to democracy itself.

Rosenfeld, A. (2019). Are drivers ready for traffic enforcement drones? Accident Analysis & Prevention, 122, 199–206.

Rosenfeld (2019) compares the public attitudes of Israelis and Americans with regard to drone usage for traffic enforcement. The author notes that drones can be an effective tool for enforcing traffic laws, but that Americans are far less likely to view such proactive policing as acceptable than are Israelis. The primary difference is cultural: Israel has a far more extensive history as a security state than does America. Americans will view drones with approval when used for emergency or reactive policing situations—but not when drones are used to enforce routine laws or issue traffic citations. They view this as a violation of their freedom and right to privacy. Israelis, on the other hand, have less of a problem with drones used for traffic enforcement, as they are accustomed to the idea of surveillance and the need for enhanced security. While drones may be efficient tools in traffic policing, law enforcement in America faces a significant cultural hurdle in making use of such tools because of the freedom- and rights-focused nature of American society.

Sakiyama, M., Miethe, T. D., Lieberman, J. D., Heen, M. S., & Tuttle, O. (2017). Big hover or big brother? Public attitudes about drone usage in domestic policing activities. Security Journal, 30(4), 1027–1044.

Sakiyama et al. (2017) examine the public attitudes of Americans regarding drone usage and how those attitudes should inform the development of police policy incorporating drone technology. The authors note that Americans are more accepting of drones when used in reactive policing—in emergency situations such as search and rescue missions or locating an offender who has fled. Americans are far less accepting of drone technology when used in proactive policing, such as routine surveillance or traffic enforcement. These findings show that the American public places a clear limitation on how and when drones should be used by police, meaning that police policy should reflect these concerns and provide robust guidance on accountability and transparency so that no fissures emerge in the police-community relationship.

Schwartz, S. C. (2017). Big brother or trusted allies: How the police can earn community support for using unmanned aircraft. Naval Postgraduate School Monterey United States.

Schwartz (2017) argues that the use of drone technology by law enforcement is controversial in communities because of concerns over privacy rights and fears of invasive, pervasive surveillance. The legality of drone technology may not be an issue in most places, but community concerns can be a significant obstacle. Police must work with communities to address issues of crime and security; working against them creates too much friction and mistrust. To address this problem, Schwartz (2017) examines four municipalities and one county sheriff's office in which drone programs were implemented, analyzing what factors led to success and what factors led to failure. The key to success, identified by Schwartz (2017), is that successful implementation of drone programs is predicated upon community engagement consistent with the recommendations of the International Association of Chiefs of Police (IACP) and the Community Oriented Policing Office of the US Department of Justice (USDOJ).

Sinclair, M. (2018). Proposed rules to determine the legal use of autonomous and semi-autonomous platforms in domestic US law enforcement. NCJL & Tech., 20, 1.

Sinclair (2018) highlights some of the risks of drone and autonomous technology in policing, including an accountability gap, a lack of legal checks, and an increase in the militarization of police. The arming of autonomous instruments and drones will require careful consideration as to whether these tools will be capable of deadly force or not. Some may be, but others should be limited to non-lethal capabilities. The author argues that any autonomous craft or instrument should be prohibited from being armed with capabilities for lethal force. The main insight from this article is that the public is likely to be most concerned about how accountably law enforcement officers use drone technology in their police work. The author notes that states have individual laws on drone usage and that while there are benefits to the application of drones in policing, there are also significant drawbacks and downside risks.