UNDERSTANDING THE PUBLIC'S OPINIONS OF UAV-ASSISTED RESIDENTIAL MONITORING BY POLICE.

• Author: Merola, Linda M.
• Position: Unmanned aerial vehicles

Introduction 763 I. The Legal Context Governing the Use of UAVs by Police 768 II. Public Opinions of UAV Monitoring 777 III. Data and Methods 780 A. Survey Instrument 780 B. Sample Characteristics and Limitations 782 C. Multivariable Analyses 784 IV. Results 788 A. Survey Responses 788 B. Multivariable Analyses Predicting Support for Drone Usage 788 V. Discussion 793 Appendix A 803 Appendix B 804 Appendix C 805 INTRODUCTION

Unmanned aerial vehicles (UAVs, UASs, drones) are being used by a wider variety of organizations, private citizens, and nations than ever before. (1) Although initially introduced into the public's awareness via media and policy discussions of military drone attacks in war zones, UAVs have the potential to decrease costs and augment capabilities for many industrial, security, and safety applications. (2) For example, UAVs are currently at work patrolling the large campuses of some corporations, aiding search and rescue efforts in inaccessible areas, and even supporting border security. (3) Given these possibilities, many law enforcement agencies have deployed or are considering drones for patrol, surveillance, and security functions. (4)

UAVs are attractive to police departments because they may reduce the costs of flight when compared with traditionally-piloted craft, like helicopters. (5) Although there is some disagreement about the extent of actual cost savings in the literature, the cost to acquire and fly a UAV may be much lower than a piloted craft, depending upon the capabilities of the drone. (6) These decreased operational costs may enable the use of flight for new functions, such as the use of UAVs to collect intelligence when police are faced with hazardous terrain or dangerous situations. (7) UAVs may also facilitate increased monitoring or photography of residential neighborhoods or public spaces, such as parks, if police agencies opt to utilize the aircraft in this manner. (8)

Due to their surveillance capabilities, UAVs can also prompt potentially serious privacy and transparency concerns. Drones can be used for surveillance by equipping the aircraft with cameras for recording pictures or high-definition video. (9) Although somewhat less common at the present moment, drones may also be enhanced with specialized microphones or utilize other noise-reduction methods for recording audio. (10) The potential intrusiveness of UAV surveillance may further be amplified by linking UAVs with other advanced technologies, such as facial recognition, infrared lenses, or heat sensors." Moreover, detailed information about individuals' activities may also be revealed by connecting different sources of data together, such as by linking the products of UAV surveillance with other police and government databases or even with consumer data. (12) Since data linking could allow the viewing of an individual's actions from multiple vantage points and over sustained periods, it greatly increases the information that is readily available to police and other government entities and moves beyond the inferences that may be drawn from officer observations or even single uses of advanced technologies, like drones. (13) And advanced UAVs may stay airborne for long periods of time and collect data from a height that renders the device imperceptible to those on the ground, capabilities which may raise the specter of persistent, covert surveillance in the minds of the public. (14)

Despite the increasing use of drones, a variety of issues remain relatively unexplored in the literature. First, although much has been written about UAVs, a large percentage of the literature examines the technology's use by the military or in the international (rather than the domestic) context. (15) Within the domestic literature, some surveys examine perceptions of police drones, (16) but most (by design) explore a wide variety of drone-related issues to establish an early baseline for understanding the public's opinions. Thus far, however, the research has made clear that opinions of UAVs are highly context- and function-dependent, suggesting that opinions will vary widely based upon specific uses. (17) At present, only a few studies investigate public reactions to particular surveillance functions and the latest of these involved data collected in 2015. (18) Thus, a goal of this Article is both to update and to add further texture to existing findings in this area.

To do so, the Authors fielded a survey of the U.S. public (n=606) with the goal of examining opinions about the use of UAVs by a local police department for a variety of monitoring functions. (19) In this Article, we focus on three scenarios wherein police are posited to use technology for residential neighborhood photography and recording: (1) a police drone that captures pictures or video from 1,000 feet in altitude, (2) a police drone that captures pictures or video from 50 feet in altitude, and (3) (for comparison's sake) the same pictures or video captured via closed-circuit television (CCTV) cameras located on the ground. The examination of public opinions of police UAVs is important for several reasons. First, in a democratic society, the public's views should guide police department policies regarding the adoption of new technologies and the uses and preservation of the resulting data. Second, as the courts render decisions concerning the uses of UAVs by police and other government actors, they will--by necessity--draw conclusions about the scope of individuals' "reasonable expectationfs] of privacy" with respect to these evolving issues. (20) A further goal of this Article is to provide detailed information concerning the public's actual expectations surrounding the use of UAVs. As mentioned above, existing publications (while exceedingly helpful) have analyzed data from 2015 and earlier. In the case of emerging technologies, though, it is particularly important to update such work, as individuals' notions of privacy may evolve with technological change and increased familiarity. In addition to reporting our survey results, we also analyze this data using multivariable regression to better understand the demographic factors and other opinions which correlate with respondents' judgments of UAVs.

Part I of this Article begins by describing the legal context that governs the use of UAVs by police agencies. Part II then reviews the existing literature examining public opinions concerning police drones. Part III details the data collection and methods used in our empirical analyses, and Part IV presents our results. Finally, Part V contextualizes these results and offers conclusions and policy recommendations on their basis.

1. THE LEGAL CONTEXT GOVERNING THE USE OF UAVS BY POLICE

   In 2012, the Federal Aviation Administration (FAA) Modernization and Reform Act (21) was successfully passed by Congress and directed the Secretary of the FAA to determine whether Unmanned Aircraft Systems (UAS) operations could safely be operated in the national airspace system (NAS) and if so, to "establish requirements for the safe operation of such aircraft systems in the national airspace system." (22) In response, the FAA developed a series of rules governing registration, safety, marking, and a variety of other requirements for different classes of pilots, including those operating UAVs for recreational, commercial, public safety or government, and educational purposes. (23) Moreover, in 2018, the FAA also introduced LAANC, the Low Altitude Authorization and Notification Capability system, which allowed drone operators to receive flight authorizations in real time and air traffic controllers to view drone activity in controlled airspace. (24) Though most of the efforts of the FAA have been directed towards operations and safety, the National Telecommunications and Information Administration (NTIA) has published a set of best practices for UAS privacy, transparency, and accountability, following a process by which the agency convened UAS stakeholders, including other interested government agencies. (25) These best practices include informing others of the use of UAS, showing care when operating the aircraft, limiting the use of collected data, and protecting "covered" (or personally identifiable) data. (26)

   Yet, although these best practices represent efforts to promote privacy and transparency in the context of UAVs, they are voluntary. Efforts to enact UAV-specific restrictions on surveillance into law have been limited at the federal level. (27) In 2013, the Drone Aircraft Privacy and Transparency Act and the Preserving American Privacy Act were introduced in Congress, but neither of these bills were passed into law. (28) Thus, under the existing framework, the FAA holds exclusive authority for many areas of UAV regulations. In taking such a position, the FAA argued that UAVs fall under the authority of the national government because of the national interest in a functional NAS. (29) In support of this, the FAA has cited the grant of lawmaking authority given to the U.S. Congress under the Commerce Clause of the U.S. Constitution, arguing that Congress has preempted the "field" of air regulation and that "[w]here Congress occupies an entire field . . . even complementary state regulation is impermissible." (30) Despite this preemption, however, there are certain types of issues related to UAVs that may be preserved as the appropriate subject of state and local lawmaking under the grant of state and local police power, such as those related to "land use, zoning, privacy, trespass, and law enforcement operations." (31) Consequently, there remain particular issues that are open to state and local lawmaking either because they fall into zones for which there is concurrent authority with the federal government (such as privacy) or because they fall into categories where authority has traditionally been reserved to the states. (32) At the state level, since 2013, at...