Legal and Regulatory Considerations

sUAS use by police is in the national and legal spotlight. There are important legal considerations related to their use, legislative protections at the state level, and constitutional protections in place addressing many of the onboard technologies systems often found on sUAS. Before law enforcement leaders begin to use any new technology, it is important to consider whether the technology will raise legal and constitutional issues. This is particularly key for addressing the use of UAS technology within a community policing framework.

Constitutional Law

As with numerous other technologies, the use of UAS is evolving much quicker than the law. While the legal issues surrounding UAS use are rapidly evolving as the courts consider them, significant guidance can be found in existing constitutional law and law addressing other technologies.

The Fourth Amendment and the Right to Privacy


 

The Fourth Amendment prohibits unreasonable search and seizure. As such, people must have a reasonable expectation of privacy (RXP) in certain spaces such as in their homes and in public spaces configured to provide privacy. 

The RXP Test: When interpreting the Fourth Amendment right to privacy, courts consider whether citizens have a reasonable expectation of privacy (RXP) in the situation. People on city streets do not have a reasonable expectation of privacy, but they so in their homes. When considering the use of UAS in open spaces, the RXP test asks you to consider whether people have a reasonable expectation of privacy in the space.

The following constitutional case law is a source of significant guidance to police agencies interested in establishing a sUAS program in their agencies:
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Fact Sheet

Constitutional Protections and the RXP Test.

State Legislation

In 2013, states began introducing UAS legislation in a rapid fire fashion. This reaction reflected a public fear in the use of sUAS by law enforcement to violate privacy. Much of the legislation deals with defining drones and limiting law enforcement’s ability to gather information or evidence with them.

States that have currently enacted UAS legislation applicable to police include:

Because the application of sUAS technology for public safety use is emerging, the legal and regulatory environment is continually changing. Always be sure to consult the most current federal, state, and local laws applicable to sUAS. Law enforcement agencies are strongly advised to consult with their own City Attorney or District Attorney on legal and constitutional issues surrounding the use of sUAS before launching their program.

Current Unmanned Aircraft State Law Landscape →

Federal Regulations

The regulatory differences between civil and public aircraft are significant. Law enforcement use of sUAS is regulated by the Federal Aviation Administration under Part 107 –Small Unmanned Aircraft Systems.

The requirements of Part 107 include the following:

    • Applies to sUAS that weigh less than 55 lbs. (25kg)
    • Aircraft must remain within visual line of sight of the pilot
    • May not be operated over any person not directly participating in the operation
    • Is restricted to daylight operations
    • Does not require the use of a visual observer
    • Can fly at a maximum altitude of 400 feet above ground level (AGL)
    • Operations within Class G (uncontrolled) airspace are authorized without permission from air traffic control

    • Establishes an RPIC airman certificate
    • RPIC is responsible for ensuring the condition of the system is safe for operation prior to flight

    • FAA airworthiness certification is not required

FAA Fact Sheet →

Small Unmanned Aircraft Regulations (Part 107) Summary & Full.

FAA Safety Team →

Federal Aviation Administration resource site for safe flying, including sUAS.

FAA UAS Regulations and Policy →

All federal regulations related to UAS.

Police Foundation sUAS Resources

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Fact Sheet

States with UAS Legislation Applicable to Police.

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Legal Memo

Overview of UAS Related State Legislation (2014).

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Fact Sheet

Constitutional Guidance for UAS.

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Legal Memo

Police Use of UAS under U.S. Constitutional Case Law.