Department of Homeland Security is Working with State and Local Law Enforcement to Use Drones

One Nation Under The Drone: The Rising Number Of UAVs In American Skies

December 22, 2011

TPM.com - A secret air show in Houston. An unmanned blimp in Utah. A sovereign citizen arrested in North Dakota.

Each of these is just one small part of the bigger story of the proliferation of unmanned aircraft use within the U.S., and each is likely to become smaller still if the FAA goes through with plans to loosen regulations governing domestic use of drones.

News reports about Predator attacks in Iraq and Afghanistan are common if not always complete, but what’s gotten much less attention is the increase in unarmed drones that are buzzing around within the U.S. itself. Primarily, unarmed Predator B drones are only used by government agents to patrol the borders for illegal immigrants, but there are a (very large) handful of other agencies and companies that use smaller, unarmed drones for a slew of other purposes. And that number is only expected to grow.

The FAA says that as of September 13, 2011, there were 285 active Certificates of Authorization (COA) for 85 different users, covering 82 different unmanned unarmed aircraft types.

Though the exact breakdown of the organizations who have authorization is unclear — and the FAA would not elaborate for “privacy” and “security” reasons — in January the Washington Post reported that as of December 1, 2010, 35% of the permissions were held by the Department of Defense, 11% by NASA, and 5% by the Department of Homeland Security. The FBI and law enforcement agencies also hold some, as do manufacturers and even academic institutions.

Between pressure from trade groups (like the drone manufacturers group the Association for Unmanned Vehicle Systems International), proposed legislation from Sens. Chuck Schumer (D-NY) and Ron Wyden (D-OR) to expand the number of drone testing sites in the U.S., and petitioning from states like Oklahoma for an approved 80-mile air corridor reserved exclusively for drone development and testing, there is great potential for drone use to expand within the U.S. in the next few years.

Les Dorr, a spokesman for the FAA, says that there are currently two types of authorizations — one for public operations, as in state and local governments, and one for private entities. In each case, the application process involves telling the FAA what type and where and when aircraft will be flown, so the agency can determine if it can ensure the safety of other aircraft. Dorr said that next month the FAA hopes to propose new, looser rules for use of small unarmed Unmanned Aircraft Systems (sUAS) because “that’s where the demand is.”

He told TPM that they’re hoping to publish the new regulations in January, which will be followed by a comment period for industry and other interested parties. That usually lasts 60 days, at which point the FAA will take the comments into consideration when drafting the final language of the rule.

So who would use these small drones?

Kevin Lauscher, a Grant Assistance Specialist for the Canada-based manufacturers of the Draganfly drones, couldn’t say how many they’ve sold in the U.S. so far. But he said that aside from law enforcement agencies, they’ve sold drones to companies in real estate, manufacturing, academic institutions and even resorts. He described how some construction companies use drones for safety reasons, in place of a person on top of a crane or scaffolding.

But, the FAA said in a press release in October, though “interest is growing in civil (non-government) uses” for drones, “one of the most promising potential uses for sUAS is in law enforcement.”

“The FAA is working with urban police departments in major metropolitan areas and national public safety organizations on test programs involving unmanned aircraft,” the release says, also noting that members of law enforcement agencies participated in the committee that is drafting the new sUAS rule.

So far, there is a handful of law enforcement agencies that already have authorization to use drones, like sheriff’s departments in Queen Anne’s County, Maryland and Lane County, Oregon and the Texas Department of Public Safety. Police in Arlington, Texas have a drone they acquired to help with security during the February, 2011 Superbowl. The Mayor of Ogden, Utah is working to get an “unmanned blimp” that would fly over the city and serve as “a deterrent to crime.”

But there are some cases that are particularly concerning for civil liberties advocates. In North Dakota, a family of “sovereign citizens” was arrested with the help of a Predator B drone, borrowed from border patrol agents by the local sheriff in an effort to avoid a standoff over missing cows. In the first reported case of a drone being used to aid in the arrest of a U.S. citizen, the drone was able to detect when the family was carrying weapons so officials could move in without fear of a firefight.

There’s also the Houston Police Department, which scrapped a plan to bring on a drone shortly after KPRC-TV filmed local officials participating in a secret air show for drones, about 70 miles outside of the city. The police chief mentioned in a press conference that the drones could be used for issuing traffic tickets, and the backlash was such that the Mayor put the kibosh on the program. But, according to KPRC-TV, the Montgomery County Sheriff’s Office near Houston still used $300,000 in federal grant money from the DHS to buy a ShadowHawk unmanned helicopter.

“We’re not going to use it to be invading somebody’s privacy. It’ll be used for situations we have with criminals,” Montgomery County Sheriff Tommy Gage said.

Law enforcement officials agree with Gage, and emphasize that drone use is to protect officers and nothing more.

Ben Miller, the UAS Operations Manager at the Mesa County Sheriff’s Office, said his office primarily uses their two drones for search-and-rescue missions or taking aerial photos of potential crime scenes. He described how the UAS unit was tasked with searching a mile-long area for a man who went missing and was thought to be suicidal — a search they completed in an hour. Normally, he said, a search like that would be conducted with agents standing shoulder-to-shoulder, and would have taken much longer.

Miller told TPM that there have been concerns expressed about potential privacy violations, but the department is careful to get warrants when necessary.

“That’s definitely a sensitive subject,” he said, but “probably 1% of the application potential is surveillance” for drones.

“Flying cameras are not a new thing. What’s new is doing it smaller and cheaper,” he added. “There probably are going to be some challenges in the future,” but for now there’s enough case law to keep law enforcement in check. “If we’re going to fly below 400 feet we’re going to get a search warrant,” Miller said.

Sgt. Andrew Cohen of the Miami-Dade Police Department says their two drones are still in testing and training, but would mostly be used to provide tactical air support to police units, such as in a hostage situation. He said that there is a “misconception” that drones will be used to infringe on people’s privacy — if for no other reason than because they’re very noisy. “

This thing is not stealth technology,” Cohen said. “It’s being used on a police scene” where there are already a number of police units present. “We’re not going to see anything with this probably any more than if we had a helicopter up there.”

“Everything is a tool, it’s how you use it that makes it good or bad,” Cohen said.

But civil liberties advocates are worried that it’ll be a slippery slope as more and more law enforcement agencies acquire this type of technology under the potential new FAA regulations.

The ACLU put out a report this month analyzing the increase in domestic drones, noting that since 2005 the Customs and Border Protection agency has operated seven Predator B drones along the southern border, and it hopes to increase that number to 24 by 2016.

“The prospect of cheap, small, portable flying video surveillance machines threatens to eradicate existing practical limits on aerial monitoring and allow for pervasive surveillance, police fishing expeditions, and abusive use of these tools in a way that could eventually eliminate the privacy Americans have traditionally enjoyed in their movements and activities,” the report says.

Jennifer Lynch, a staff attorney for the Electronic Frontier Foundation, says that a big concern right now is how murky the statistics are on the number of domestic drones.

“They’re concerning for the privacy of Americans, and we just don’t know at this point how the agencies are using them,” she said.

“The Department of Homeland Security is working with state and local law enforcement to use drones for basic criminal activity,” Lynch said. “And in my mind that type of activity hasn’t been approved for the use of these drones.”

“I don’t believe that law enforcement agencies have the proper standards in place for when using drones is appropriate,” she said.

Ryan Calo, the Director for Privacy and Robotics at Stanford Law School’s Center for Internet and Society, wrote in a report that “these machines are disquieting. Virtually any robot can engender a certain amount of discomfort, let alone one associated in the mind of the average American with spy operations or targeted killing. If you will pardon the inevitable reference to 1984, George Orwell specifically describes small flying devices that roam neighborhoods and peer into windows.”

Calo told TPM that local sheriffs and other law enforcement agencies are using the smaller drones “more regularly,” though it’s still not routine. But Calo noted that under the possible new FAA regulations it’ll become much more common.

“There’s a little bit of a trickle, but it would turn into a waterfall if they loosen their restrictions,” he said.

“You can imagine some pretty mischievous uses” for drones, Calo said. “The kind of privacy violations I’m worried about are from government and big corporations alike.”

If the restrictions are loosened, he said, some estimates put the number of domestic drones at 15,000 by 2018. But he emphasized that if there is such a dramatic increase in the number of drones out there, there will likely be a reexamining of existing privacy laws.

“I think we’re not going to be comfortable with some of the doctrine on the books for privacy law.”

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