Unmanned aerial vehicles: friend or foe?

• Author: Feeney, Matthew
• Position: Law & Justice

IF IT CAN HAPPEN to the vice chair of the Senate Intelligence Committee, it can happen to anyone. Speaking as a special witness at a Senate Commerce Committee hearing in January 2014, Dianne Feinstein (D.-Calif.) revealed that a drone once had hovered inches from her face when she approached a window at her home to observe a nearby demonstration. She went on to discuss the "significant" privacy concerns associated with drones and urged her colleagues to implement "strong, binding enforceable privacy policies that govern drone operations."

Although Feinstein may have been exaggerating the threat of the encounter, with reports suggesting that the drone likely was a remote-controlled toy helicopter, she nonetheless was right to recognize the potential privacy threat drones represent.

While there is perhaps an irony to Sen. Feinstein urging "strong" privacy policies, given her strong support of the National Security Agency's surveillance programs, her concerns about drones are well founded. Not only are drones becoming more prevalent, they increasingly are being utilized by law enforcement agencies.

Unmanned aerial vehicles (UAVs), commonly referred to as "drones," are being employed in a range of industries, including conservation, journalism, archeology, and policing. Law enforcement drones have clear benefits: allowing police to find missing persons, suspects, and accident victims more easily. They also allow police to investigate dangerous situations, such as bomb threats and toxic spills.

While the Supreme Court has tackled privacy issues amid the emergence of new technologies, the Court's rulings on aerial surveillance are not well suited for today now that police are using drones. However, lawmakers at the state and Federal levels can implement policies that allow police to take advantage of drones while protecting privacy. These policies not only should address familiar issues associated with searches, such as warrant requirements, but relatively new concerns involving weaponization, biometric software, and surveillance technology. Such controls and regulations will allow police to do their job and prevent drones from being used as tools for secretive and needlessly intrusive surveillance.

There are features unique to drones that deserve particular attention. Among these are the wide varieties of technology that can now (or in the not-too-distant future) be attached to drones, including thermal scanners and biometric software. In addition, the potential surveillance made possible by police body cameras pales in comparison to the persistent surveillance of entire cities that now is possible thanks to advances in drone and camera technology.

The challenge for policymakers is to balance the benefits of police drones with privacy concerns. However, neither the states nor the Federal government have to wait for the Supreme Court to sort out the challenge of applying the Fourth Amendment to new technologies. By imposing warrant requirements, banning weaponization, and enforcing policies that outline public access to footage, lawmakers can provide the protection necessary against armed drones engaging in persistent and warrantless surveillance.

UAVs have proven remarkably versatile in their short history. They come in a wide variety of sizes and can (although sometimes not legally) carry a range of payloads, whether they are missiles, cameras, or even beer. Payload capacity and range varies widely depending on the drone. Perhaps the most notorious drone, the MQ-9 Reaper, which is used for U.S. military-targeted killings and surveillance, has a payload of 3,750 pounds, enough to carry several laser-guided Hellfire missiles.

The MQ-4C Triton, an unmanned military aircraft designed for maritime surveillance, is capable of staying aloft for 30 hours and traveling at around 360 mph. The Triton is outfitted with a surveillance sensor capable of persistent 360-degree observation from what its developer describes as "extremely long ranges." It also is around 10 feet longer than the Reaper and, at takeoff, can be almost 22,000 pounds heavier.

Drones available to the public are not nearly as large, nor can they carry payloads as bulky as missiles and complex surveillance equipment. The Phantom 4, a popular hobby drone, comes equipped with a camera and weighs three pounds. With more funds at their disposal than the average hobbyist, law enforcement agencies at the Federal and state levels can purchase drones with more capabilities than amateur photography drones.

Customs and Border Protection, the country's largest law enforcement agency, began using drones in 2004. The CBP uses Reapers and their maritime variant, the Guardian, for border surveillance. In...