FAA changes mean rights are in jeopardy from police drones

It’s a bird! It’s a plane! No, it’s a drone. On Monday, the Federal Aviation Administration implemented new rules for commercial operators of drones, and soon, Americans may be telling their neighbors about the police drone that circled their house last night.

The old FAA rules required commercial drone operators to possess a pilot’s license as well as special case-by-case permission from FAA regulators. The new rules require only a certification test. Other drone safety rules have stayed the same: operators are not be allowed to fly over people, above 400 feet, beyond their line of sight, or faster than 55 miles per hour. The relaxation of the pilot qualifications lowers the barrier to entry for commercial drones allowing more aviators to enter the market.

{mosads}As drones become more commonplace, there are disturbing privacy implications for everyday Americans. The growing militarization of the police is a tangible trend, and drones enhance this tendency. In addition, drones raise concerns about tracking people and warrantless searches of private homes.

The law currently governing this technology stems from a 2001 case where the Supreme Court held that the government cannot use a device that is not in general public use to explore details of a private home that would previously have been unknowable without physical intrusion. This type of surveillance, including thermal imaging and drug sniffing dogs, constitutes an illegal search under the Fourth Amendment and requires a judge to authorize a search warrant.

Although the Court believed this technology was a bridge too far since it was not commonplace, the Court has shifted its understanding of what constitutes a search based on norms for the times. For example, the Supreme Court has made dramatic swings in what constitutes privacy in email communication as well as adapted governing constitutional law on technology the police can use to observe the public.

When the new rules of the FAA went into effect Monday, the regulatory body anticipated that over 600,000 new drones will take to the sky within the year. This dramatic change in commercial use of drones reflects the rising popularity of private, amateur use of unmanned aircraft. Analysts estimate that DJI, a company that sells the popular Phantom drones, sells over 30,000 drones per month. These drones shoot video in 4K and take high-resolution photographs, making them a dream come true for photographers. This also means that over a million drones could be in the sky in the future.

While the FAA has specified particular flight rules, courts have not clarified whether police use of drones for searches of property or homes without a warrant is an appropriate use of technology. Following the logic of precedent, if a device is in the general public use, police may use the technology as any other consumer would.

As police access more technology from decreasing military operations overseas, the implications are severe. Access to and use of the “Gorgon Stare” drone, for example, would allow the police to record entire cities of visual information. On the one hand, catching suspects would be much easier, but on the other, constant, recorded surveillance is an alarming privacy cost to pay for freedom.

Another drone legal gray area relates to what technology particular drones can be equipped to carry. In 2015, North Dakota’s state legislature authorized police drones to carry “non-lethal” weapons. Other states have taken some preventative measures to mitigate the dangers of police use of drones as well. The measures are not enough, however, and will be constantly adapting to changes in technology and the use by the civilian public. Police drones, for example, stocked with thermal technology could be considered a device in the public use despite the fact that the Court previously found that thermal technology alone was not widely available to the public.

Police flying a drone over private property and peering into homes at 400 feet without a warrant strikes an uncomfortable balance between safety and privacy that Americans should not be prepared to accept. The law is reactive typically. Courts redress violations of freedoms by the government after they have happened, and legislators often fail to draft affirmative laws until they respond to the wishes of a public whose privacy has already been violated. The potential for abuse does not permit delay.

Commonplace use of drones by the police will lead to exploitation. These abuses may also contribute safety, but our society cannot be willing to sacrifice liberty for temporary security. Rather, citizens must demand constitutional limits on police departments’ resources in order to preserve freedom.

Tyler Grant is a graduate of University of Virginia School of Law and Washington and Lee University.