WARRANTLESS OPERATIONS OF PUBLIC USE DRONES: CONSIDERATIONS FOR GOVERNMENT AGENCIES.

• Author: McNeal, Gregory S.

ABSTRACT

The benefits of drones continue to transform our lives and nowhere is this more apparent than with the use of drones by local governments. While these benefits are tremendous, residents often express privacy concerns and fear of persistent surveillance associated with law enforcements deployment of drones. In response, critics have made knee jerk reactions to attempt to apply warrant requirements prior to police use of drones. Outside the law enforcement context, civic uses of drones face similar challenges to deployment, so long as government actors must operate under a traditional administrative warrant analysis.

This Article advocates that well established aerial surveillance law is applicable to both law enforcement use of drones as well as other public uses of drones. According to well established case law starting with California v. Ciraolo, (1) observations made by law enforcement are allowable sans warrant if they occur in public navigable airspace or from a place where the officer had a right to be. Such an analysis should be applicable to civic uses of drones when determining whether an administrative warrant is required prior to deploying public use drones for code enforcement and other municipal inspections. This Article also explores how government agencies can change negative perceptions of drones in their communities through adoption of proper policies and procedures.

TABLE OF CONTENTS Introduction 704 I. Current Federal Framework for Unmanned Aircraft 709 II. Aerial Surveillance Law under the Fourth Amendment and Property Rights as Applied to Law Enforcement 711 III. Code Enforcement use of Drones without Administrative Warrants 713 A. Public Vantage Points 715 B. Consent 716 C. Home and Property Inspections 716 IV. Government Agencies Should Create Clear Policies and Procedures for Public Use Drones 718 A. Transparency and Accountability Measures 718 B. Data Retention 720 C. Safety and Training 721 Conclusion 723 INTRODUCTION

The evolution of drones, from military weapons to commercial tools, continues to transform civic life and nowhere is that more apparent than in the use of drones by cities themselves. Across the world, drones are becoming increasingly popular for public use. Cities like Modesto, California use drones to assist search-and-rescue efforts and deliver aerial imagery to law enforcement during criminal pursuits; (2) the Tampa Bay Port Authority Board of Commissioners intends to use drones to survey properties and construction projects; (3) the Minnesota Department of Transportation is using drones to inspect bridges and highways; (4) and Somerville, Massachusetts uses drones to survey municipal buildings for snow build-up. (5) Other intended public uses of drones operated by government agencies include:

* Aerial photography and filming of city events to be used for marketing purposes;

* Property inspections, code enforcement, and appraisals; (6)

* Firefighting activities; (7)

* Accident or crime scene investigation; (8)

* Ambulance and defibrillator drones; (9)

* Agricultural inspections; (10)

* Scientific research (11) on natural resources, wildlands, and waterways; (12)

* Tactical advantage and use in hazardous and hostile situations. (13)

The way private businesses use drones will illuminate new and more cost-effective ways of carrying out government business, while increasing efficiency and reducing the risk of death or injury to government personnel. (14)

Despite the apparent benefits of drones, as drone use has become more prevalent in communities, concerns about their use have been raised to lawmakers, at the federal, state, and municipal level. (15) These concerns have led to a variety of public reactions, including, in some cases, a push for legislation to prohibit public use of drones absent a warrant, largely in the law enforcement context. In fact, privacy advocates have succeeded in over a dozen states, passing laws prohibiting law enforcement use of drones; the majority of those states ban government use of drones without a warrant. (16) Lawmakers who often do not agree on other issues are enacting laws in both red states (Alabama, Alaska, Idaho, Kansas, and South Carolina) and blue states (California, Massachusetts, New Jersey, New York, and Washington). (17)

At the federal level, the rulemaking process has yet to touch on these questions. The federal government has, after repeated delays, issued the long-awaited rules for unmanned aircraft operations under Part 107. (18) And the FA A is purportedly developing a process to prohibit flights over critical infrastructure to protect privacy, (19) while considering a proposed rule for flights over people. (20)

Nonetheless, many legislators are not waiting for further guidance. Between December 2016 and January 2017 alone, legislatures in New Mexico (New Mexico Senate Bill 167), (21) New Hampshire (New Hampshire House Bill 97), (22) and New York (New York Assembly Bill 901) (23) all introduced bills prohibiting government use of drones absent a warrant, and Oklahoma proposed similar restrictions on government use of drones (Oklahoma Senate Bill 630). (24) These legislative efforts, whether current or pending law, are largely aimed at restricting the government's use of drone technology.

Privacy advocates argue there is a real threat of pervasive surveillance with public use drones because they are an inexpensive means for government agencies to gather data or conduct business. (25) While drones may be relatively less expensive compared to other manned aircraft employed by local, state, and federal government, they are significantly less capable than their manned counterparts. Drones used by cities or counties are typically small quadcopters with very limited flying time. Generally, they are equipped with less sophisticated equipment than manned aircraft or military Predator drones, meaning they are less intrusive to one's privacy. (26)

When considering the greater good of public safety, it becomes easily apparent why a warrant requirement for public use drones is unlikely to be the best approach. Such a requirement would prevent law enforcement from performing reasonable measures to ensure public safety at large events, such as marathons, parades, or summer concert series. In light of terrorist attacks like the Boston Marathon bombing or the Nice, France promenade attack on Bastille Day, the potential value of drone-enabled observation of public events is an obvious opportunity for drones to increase public safety without compromising personal privacy. One can easily understand why law enforcement may want to fly drones over such events. In order to do so, however, law enforcement would be required to file an application with a judge, supported by a sworn, detailed statement made by the police officer. (27) The warrant must be based on probable cause, meaning that the officer, based on facts and circumstances in her knowledge, has reason to believe a crime has or is about to be committed. (28) In addition, law enforcement must identify with particularity the place to be searched or the persons to be surveyed. (29) In the context of monitoring a public event such as a parade, marathon, or concert to ensure public safety, these requirements pose significant hurdles for an officer seeking a warrant, and suggest that alternative approaches (30) may be better suited for balancing the privacy and public safety interests.

Outside the law enforcement context, civic uses of drones face similar challenges to deployment, so long as government actors must operate under a traditional administrative warrant analysis. While the justification of preventing potential terrorist attacks may not be applicable for code enforcement drone activities, such as investigating city code violations for public nuisance, we should not jump to the conclusion that administrative warrants must be obtained for all drones uses.

This Article looks at well-established case law pertaining to law enforcement's aerial observations without prior warrants and evaluates whether the same rules are applicable to other public uses of drones, taking into account protections afforded under the Fourth Amendment. In order to determine when and where public use drones can operate, Part I surveys the current federal framework for unmanned aircraft. Part II examines aerial surveillance law and Fourth Amendment considerations pertaining to law enforcement's aerial observations. Part III explores public use drones, focusing on code enforcement and other municipal inspections, and whether administrative warrants are required prior to deploying public use drones for such inspections. Part IV suggests how municipalities can change the perception of drones in their communities by increasing transparency and accountability through proper policies and procedures.

1. CURRENT FEDERAL FRAMEWORK FOR UNMANNED AIRCRAFT

   In 2012, Congress passed the FA A Modernization and Reform Act ("FMRA"), which gave the Federal Aviation Authority ("FAA") the responsibility to develop rules for safe integration of drones into our airspace. While the rules were supposed to be complete in 2014, (31) the Department of Transportation finalized the "Small UAS" (unmanned aircraft systems) rule, otherwise known as Part 107, on June 21, 2016 (which became effective on August 29, 2016). (32) In the interim, the FAA created a "Section 333 Exemption," which allowed the agency to authorize certain uses of drones that it deemed "safe." (33) Section 333 Exemptions became relatively common while the drone industry awaited the announcement of Part 107. Upon issuance of a Section 333 Exemption, an operator could operate under the exemption, subject to minor baseline rules. The baseline rules paved the way for Part 107. (34) Section 333 Exemptions are generally valid for two years, and because most were issued in the last year or two, operators have a choice to either fly under Part 107 or...