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.
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 court ruled that attaching a listening device to a public telephone booth violates the Fourth Amendment.
The court ruled that attaching a tracking beeper did not constitute a search, but turning it on did.
The court ruled there was not a Fourth Amendment violation when officers took pictures of a private residence at 1000 feet, however, this ruling needs to be weighed in accordance with the RXP test.
Because the exterior of an automobile is for all intents and purposes in the public eye, it may be visually examined by police without a warrant.
Video surveillance of private property from a pole camera, when obtained without a warrant, constitutes a search in violation of the Fourth Amendment.
Court ruled that photographs of a private residence taken at 400 feet did not constitute a search, however this ruling needs to be weighed in accordance with the RXP test.
Warrantless use of a thermal imaging device on a private residence constitutes a search that violates a person’s right to privacy.
The court ruled that attaching a GPS device to a car without a warrant constitutes an unlawful search and also trespass into a constitutionally protected area.
The use of sUAS to intercept and collect WiFi data without a warrant is considered wiretapping.
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.
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