by John Madziarczyk
“Let’s power it up”, says the officer. It’s May 2nd, and the Seattle City Council is meeting in committee, looking at the civil rights and public safety issues posed by the Seattle PD’s new drone program. The council chamber itself is empty except for two city councilmen, their aides, the clerks, and the officers showing off the drone. They’re meeting at a conference table in front of the grand sweeping bank of seats that the council normally occupies. In the visitors section, though, there’s a lot of action. Camera crews are there, reporters, a few interested citizens, and fellow officers showing support. Still, it seems like an non-event, like police of a small town demonstrating a newfangled device in front of a village council meeting. The drone is a coffee table sized mesh of arms, helicopter blades, and a central stabilizing unit reminiscent of the back of a hornet. It has three arms, each ending with an upright soda can that has rotors on its top and bottom. The camera is a small squarish oblong box that hangs off of the body. In a second they power up. It whirs a little bit, the green, white, and red safety lights turn on, and then they turn it off. The police aren’t allowed to fly the drone in the City Council chamber due to safety issues, so this is the best they can do.
“It can only fly four hundred feet” in altitude because of FAA regulations, Assistant Police Chief O’Donagh tells the Council. The drone is limited in its powers and abilities, partly because of regulations, partly because of the limitations of the design. It can send streaming video back, but because of it’s its battery life it can only fly for ten minutes on one charge. It can’t fly over crowds for safety reasons and it has to remain within the line of sight of the operator. But that’s only where things stand now. Technology will surely keep up with interest, and the technical capabilities of this drone have already been outpaced by other models. In the future, ten minutes will become twenty, and twenty will become half an hour, and then more. How those more powerful drones will be regulated will likely depend on the Seattle PD’s initial policies. Right now, though, the Seattle PD’s drone is just a toy, a questionable expense, even, at $41,000.Because Seattle is the first major city to use drone technology, other cities and municipalities will look at what we come up with when making their own rules and regulations.
The Seattle PD envisions the drone being used for emergencies where putting officers on the scene would either be dangerous or impossible. At the presentation, the Seattle PD brought up the stand off that took place recently in North Bend, in the Cascade mountain range, where a man wanted for killing his wife and child was holed up in a bunker he had carved into the side of Rattlesnake Mountain. It was believed to be heavily booby trapped. In that situation, the police could have used the drone to go in there and take pictures that would help them to assess the situation. In talking with Detective Mark Jamieson, of the Seattle PD’s Public Affairs department, he broutght up hazmat monitoring as a potential use. Drones can be equipped with radiation and chemical detectors, flown above toxic spills, or into apartments and homes where there’s a suspicion that dangerous material is present. According to Detective Jamieson, drones are already being used in Canada to aid fire departments by gathering overhead pictures of toxic spills.
The ACLU of Washington is concerned that mission creep may happen and that the overall policy regulating the drones will be made by the Police Department without enough input from the City Council or the public. Mission creep refers to new, unplanned, tasks or activities beyond the original intent of the mission that are thought to be useful or needed. The Seattle PD, in presenting to the City Council, tried to allay such fears.
The police say they will announce through the internet, on the Police Blotter blog and through twitter, when they’ve put a drone in the air, and that they’ll be holding community meetings to hear citizens’ concerns. Washington State has a specific requirement for police to destroy surveillance data they’ve gathered within twenty four hours if there’s no justifiable need for it, and Seattle itself has a longstanding prohibition against police filming citizens because of their religious or political affiliations.
The story often cited in the world of drone producers and professionals as a success is a recent case of cattle rustling in Lakota, North Dakota involving an armed standoff. Six cattle wandered onto the ranch of Rodney Brossart, a man who belongs to the sovereign citizens movement, who believed that his ranch was not part of the United States. Because it was his country, he believed he had a right to keep the cattle. According to U.S. News and World Report, Brossart and three others used high powered rifles to chase police off the ranch. Other local news sources reported that Brossart made a statement to the effect that if police officers came onto his property they would not be coming out. Because the ranch was very large, it was difficult to locate him without putting police in danger, so they called in a Predator Drone used by the U.S. Customs and Border Protection Service to help find him. The drone found him, and the police were able to successfully apprehend him without incident. However, drones aren’t just the being used by the police and the border patrol.
Hobbyists are using them, as are universities, and they’re poised to move into the commercial sector. People can now build them in their backyards and fly them from there, taking pictures of the world and exploring the sky. The drones themselves are still fairly expensive. A plan on DIYDrones.com using a pre-made electronics pack hooked up to a homemade RC plane kit is described as running “under $500”. Universities are using them in their scientific research.
KSAT news in San Antonio interviewed Professor Thom Hardy of Texas State University, who is overseeing the school’s drone program. Hardy said drones can be used for counting deer and monitoring how land use affects watersheds, among other potential projects. In the private sector, Hardy said that farmers can use them to check their crops on a daily basis, instead of having to go out and manually look at all of their land.
Even though drones have a wide variety of uses, according to the Center for Democracy and Technology right now there is no federal agency that is looking at the privacy concerns the drones bring up. The FAA, which just released its drone regulations on May 14th, looks at the issue from a purely technical standpoint. Its concern is to establish rules that will protect people on the ground and in the air. Right now, the prohibition on flying drones over groups of people, the 400 foot height limit, and the requirement that they remain in the line of sight of the operator happen to ensure some limitations on potential invasions of privacy, but all of that might change as technology advances.
A drone doesn’t have to fly over groups of people to gather surveillance on them, though. The Seattle PD said at the City Council hearing that they’re seriously considering buying an extra drone for the Port of Seattle as part of a program to funded by an ’08 anti-terrosim Homeland Security Grant that will also establish a line of video cameras in front of the Port. The FAA rules say that you can’t fly drones over people, but not that you can’t fly drones close to them, take their pictures with high powered cameras, or take streaming video of them, and then feed those images through facial recognition software. Both the Port of Seattle and other ports throughout the Puget Sound area have been sites of protests in the last six years, first against military shipments to and from Iraq and Afghanistan and now over labor issues, in concert with the Occupy movement.
The Seattle Police Intelligence Ordinance that prohibits police from filming political and religious groups has been publicly questioned in light of this year’s Mayday protest property destruction. There have also been indications, although they’re up for debate, that the 20/20 Plan of Mayor McGinn to reform the Seattle PD in line with the recent Justice Department investigation may include a push to loosen those rules.
All of this takes place on a national background that says there are very few rights to privacy in public places under federal law. As it stands now, there really are no rights to privacy when you’re walking in public, or even when you’re in your own backyard. The Supreme Court has ruled that if a police department aircraft flies over a public area and sees something against the law, the police can act. But like anything else, there are subtle distinctions in the law that put a twist in the subject.
Three landmark Supreme Court cases have defined the parameters of an individual’s reasonable expectation of privacy in public places: Katz v. United States, California v. Ciraolo, and Florida v. Riley. Katz established the basic test for privacy in a public place, while Ciraolo and Riley changed the emphasis of that test. The test in Katz had two parts: does the individual in question think they have a reasonable expectation of privacy, and does society see this expectation as reasonable?
Katz was arrested because of evidence from a wiretap on a phone booth he used for illegal gambling. The court ruled that even though the taps were on a public facility, and so could be seen as just providing an extension of what any bystander could hear, Katz had a reasonable and socially sanctioned expectation of privacy when using a phone booth. However, the other two cases changed the focus of the test from whether society agreed with the individual’s opinion to whether that opinion was reasonable and rational in the abstract. The two are not necessarily the same thing. The standard of reasonableness argued by lawyers before the Supreme court could be quite different from the standard of reasonableness of people in the United States as a whole.
In the case of California vs. Ciraolo, the police department flew an airplane over Ciraolo’s backyard at 1,000 feet and took pictures of his marijuana crop. The Supreme Court ruled that because it was possible for private individuals to fly planes over backyards, and that passenger jets do this on a regular basis, it was unreasonable for Ciraolo to expect he had privacy from high altitude overhead surveillance of his backyard. In the case of Florida v. Riley, the police flew a helicopter four hundred feet above Riley’s greenhouse, less than the height of Seattle’s Smith Tower. The greenhouse had a few slats missing, and police saw marijuana growing. They got a search warrant for his greenhouse, and arrested him . The justices found that because the helicopter wasn’t breaking any laws and Riley left the slats to his greenhouse open, his expectation of privacy was not reasonable. However, in the dissent Justice Brennan reasoned that the simple possibility that a private individual could fly a helicopter at 400 feet over a piece of property and observe it doesn’t invalidate a person’s reasonable expectation of privacy.
Justice Brennan also stated that “The reason why there is no reasonable expectation of privacy in an area that is exposed to the public is that little diminution in “the amount of privacy and freedom remaining to citizens” will result from police surveillance of something that any passerby readily sees. “ The use of the helicopter allowed the police to monitor the property in ways that went do far above and beyond what the average person could do that they cut into Riley’s fundamental right to privacy. However, the characterization by Brennan of the helicopter cutting into those privacy rights is arguably subjective itself and not necessarily agreed on by people at large. Any restriction of surveillance based on public sanction, via the second part of the Katz, would have to be based on values either explicitly expressed by the public or convincingly proven to exist on a mass scale. In either case, the proof would have to go beyond the opinion of one judge. Otherwise, the restrictions would not kick in, and any actions that infringed on those values would be approved by default.
Professor Ryan Calo of Stanford’s “Center for Internet and Society” made the case in the Stanford Law review that because drones present the potential for an invasion of privacy more tangible than having your data sifted through in an anonymous warehouse by the NSA, citizens may be galvanized into taking action , and that may lead to changes in the law over what they will and won’t accept from surveillance. That may potentially change the view of the courts that public spaces are open for whatever kind of surveillance police want to use. Drones bring another dimension to privacy issues, the third dimension, in a much more evocative way than aircraft, and height is at least more tangible than the hidden dimension of cyber space.
Drones have uses that go well beyond surveillance. They have legitimate uses in police work and, the private sector, but they also pose serious potential dangers to privacy. Like it or not, in the private sector, in universities, and in police work, the drones will be here to stay. It’s up to the public to decide how they want to formulate regulations to guide the uses of the drones into productive channels. Can they step up to the plate and channel the impending rush and profusion of new technology? If not, the future situation they will face will be drones regulated by default, with all of the uncertainty that implies.