Earlier this month the Oklahoma House of Representatives passed HB 2337, a bill strictly limiting under what circumstances police can use drones. It now awaits a vote in the Senate. Privacy advocates should welcome the kind of restrictions outlined in HB 2337, especially given that the legislation goes beyond what the United States Supreme Court has determined is necessary for constitutional aerial surveillance and that drone and surveillance technology will only become more intrusive.
The Supreme Court has twice ruled that police officers do not need a warrant to carry out naked eye searches of private property from the air. In both California v. Ciraolo and Florida v. Riley, two cases from the 1980s that involved searches for marijuana plants, the Court found that neither Michael Riley nor Dante Carlo Ciraolo could reasonably expect privacy from aerial searches above their property. In the Ciraolo case the observations were made from an airplane at 1,000ft, while the Riley case involved observations made from a helicopter at 400ft.
In the age of the drone, the precedents set by Ciraolo and Riley ought to concern privacy advocates. HB 2337 pushes the floor set by the Supreme Court in a more privacy‐friendly direction.
The bill requires that police officers obtain a warrant before using a drone and that they demonstrate “alternative methods of data collection are either cost‐prohibitive or present a significant risk to any person’s bodily safety.” The bill also prohibits the weaponization of drones.
These are all welcome proposals. While Supreme Court precedent does not require a warrant for aerial search of a property that doesn’t mean that states cannot impose such a requirement on their own law enforcement agents.
In fact, in his concurrence in the Riley v. California case, Supreme Court Justice Alito stressed that legislatures should play a role in protecting privacy in the 21st Century:
Many forms of modern technology are making it easier and easier for both government and private entities to amass a wealth of information about the lives of ordinary Americans, and at the same time, many ordinary Americans are choosing to make public much information that was seldom revealed to outsiders just a few decades ago.
In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.
Until the Supreme Court reconsiders current precedent it behooves privacy‐oriented lawmakers concerned about police drones to impose strict protections such as warrant requirements.
The banning of weapons on police drones is also a praiseworthy provision of HB 2337 for a number of reasons. First, the weaponization of police drones would only be the latest example of the militarization of domestic law enforcement. For years equipment like Mine‐Resistant Ambush Protected vehicles (MRAPs) and surveillance technology such as “Stingray” devices have made their way from foreign battlefields to American streets. This is a trend that ought to be resisted.
Second, given that at least one police drone can be hacked, outfitting police drones with weapons poses a clear risk to public safety. Even if police drones were immune to hackers, there is still the risk that any weapons they carry could be stolen if they ever get caught in trees or deliberately brought down by citizens using stones, firearms, or their own drones.
Paul Fitzgerald, a police chief in Connecticut, argued for police being able to weaponize drones, saying, “If someone were to put an explosive on a drone and say, ‘I’m going to crash it into an aircraft in the Northeast,’ … what does law enforcement do in a situation like that?” But, lawmakers should consider credible threats, rather than situations more likely to be seen in an action movie than in the skies over Connecticut. Fitzgerald himself went on to call his hypothetical situation “far fetched.”
Drone technology in the coming years will continue to improve, and police departments will understandably want to take advantage of the latest technology. However, such technology, while promising for manhunts, does pose privacy and safety concerns. Lawmakers can, as HB 2337 demonstrates, take steps to ensure that such concerns can be addressed.