Lawmaker Eyes Surveillance Rules for Police Drone Aircraft

The Federal Aviation Administration is preparing rules to let drone aircraft fly in the same air space as manned aircraft. But meantime, drones can still fly at lower elevations. And one state representative wants to make sure police in Tennessee don’t use drones for illegal spying.

If a cop were on board, Rep. Vance Dennis says flying over someone’s house with a camera could constitute an illegal search.

“There are currently limitations placed on manned aircraft, where you can use them in law enforcement, how you can use them. You can’t just hover say a helicopter, 50 feet over somebody’s back yard and just look around to see if you see some kind of something going on there.”

Dennis says besides a question of legal warrants, there are privacy issues in the mix.

The Savannah Republican’s wants to draft rules, but he’s put the effort on hold until next year so he can confer with law enforcement. Still, he says he’d rather be proactive than wait and let courts set boundaries for drones.

Metro police say they have at least one drone, a mini-helicopter using line-of-sight radio control. It’s purpose, they say, is not for spying, but when using a helicopter or officer might be at risk of taking a bullet.

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Dennis says any regulations are likely to be based partly on altitude.

“The courts have determined that just flying around in the airspace, over property, as long as you’re high enough, as long as your not getting down low enough to be effectuating a search, than that’s OK.”

The bill, HB 3321 Dennis/ SB 3047 Kelsey, is left sitting in the hangar for this session after police asked for a study period. But Dennis says Tennessee shouldn’t wait long.

“It’s new technology. Rules are not in place. We can sit around and wait. We can wait years or decades, until it becomes commonplace and the court has the opportunity to figure out where that balance is, with the use of those. Should it be used in the same manner as normal aircraft, or something different? Or we can go ahead and pro-actively address the issue and try to put those guidelines in place. That’s what the bill’s attempting to do.”

Legislative legal staff summarized the original bill, the first crack at the problem:

1. This bill prohibits law enforcement agencies from employing the use of an unmanned aerial vehicle, unmanned aircraft system, remotely piloted aircraft, unmanned aircraft or similar structure:
(1) While that structure is equipped with a recording device that transfers recorded or live feed to the law enforcement agency; and
(2) While the law enforcement agency is using the structure to conduct surveillance over property.

2. This bill would not apply where the law enforcement agency:
(1) Has a warrant for the property;
(2) Is attempting to locate a missing person or child; or
(3) Is authorized by federal law to do so.

The FAA rules on drones are supposed to take effect within three years.

In a March story on NPR’s Fresh Air, Brookings Institution Fellow John Villasenor talked about uses that drones could be put to in the near future – scouting real estate, spotting wildfire, and even – he said – by paparazzi over-flying celebrities’ homes.

It’s not the first example of new technology forcing a look at proper search and privacy issues – Villasenor cites a 2001 case in which the Supreme Court ruled that a look-through-the-walls thermal imager was a search that should have required a warrant.

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