John Gilbert

4/13/14
Privacy in a Digital Age
Final Paper




The Privacy Implications of High Powered Drone Surveillance by Law Enforcement in the State
of Utah
Introduction
Drones have been used in the military for almost two decades and are common in most
military missions today. They now make up a third of the planes in the United States Air Force.
1

Flying drones in place of traditional manned aircraft removes the risk of the operator losing
their life if the drone is shot down. It also allows the plane to remain in the air longer without
landing. As with many other elements of military technology, drones are becoming a more
common element in society as well. A drone is often referred to as an Unmanned Aerial System
(UAS) by the growing industry because in reality there are three components to drone flight.
2

The first is the unmanned aircraft. The second part is the pilot or operator and the station from
which they are flying, known as the control system. The third component is the data link
between the two. In order for safe flight to occur, all three components must be properly

1
Lynch, Jen. "Are Drones Watching You?" (2012). www.eff.org/deeplinks/2012/01/drones-are-watching-you.
2
Brian, Naylor. "In The Future, You Could Get Your Amazon Order Delivered By Drone." National Public Radio, Inc,
2013. www.npr.org
Gilbert 2

functioning and secure. In this paper drone and UAS will be used interchangeably to refer to the
entire system.
A drone can refer to many different types of systems. Drones can be fast and jet
powered like the Predator drone used in targeted drone strikes overseas. Drones can also be
solar powered gliders like the Boeing Solar Eagle that can slowly orbit for up to five years
straight.
3
A company called AeroVironment has developed a dragonfly-like drone that is less
than two thirds of an ounce including a battery pack and video camera. This can be flown
inconspicuously outdoors or in buildings.
4
The versatility of these systems allows for a wide
variety of uses, many of them directed towards observation and surveillance. This paper will
review the current state of legislation and case law with respect to aerial surveillance and
analyze the privacy implications of equipping drones with high definition cameras, thermal
imaging, and other high powered surveillance instruments. It will focus on the effect of these
factors on Utah drone law and law enforcement applications.
The FAA Modernization and Reform Act of 2012
The United States has led the way in unmanned aircraft design and manufacture.
Approximately 70% of UAS global growth and market share systems is in the United States.
5

Despite the inevitability of drones in common use, the FAA has been very slow to integrate
unmanned and manned aircraft in the national airspace. Recognizing this reluctance, Congress
passed the FAA Modernization and Reform Act of 2012 (The FAA Reform Act). The FAA Reform

3
Brian, Naylor. "In The Future, You Could Get Your Amazon Order Delivered By Drone." National Public Radio, Inc,
2013. www.npr.org
Gilbert 3

Act provided $63 billion in funding for the FAA and set a deadline of September 30, 2015 for the
FAA to integrate drones into the national airspace. It now appears unlikely that the FAA will
meet that deadline because they are already a year behind schedule.
6
The FAA Reform Act also
required that the FAA begin to issue permits for drone usage. As of last October the FAA had
granted around 300 permits, but has not released a full list of to whom these certificates were
given.
7
The FAA Reform Act distinguishes between civil and public uses of UASs. Public UASs are
those operated by the government, while civil are those used by private citizens.
8
The FAA has
worked hard to streamline the certification process to allow many law enforcement agencies to
get drones if they can fly them safely.
9

The FAA Reform Act also outlined a process to designate six research and test sites
across the United States. The test sites will explore how to set safety standards, train and
certify pilots, test collision avoidance methods, and test procedures in emergency situations
such as a hacked or lost data link. Twenty five institutions, including the state of Utah, applied
to be chosen by the FAA. Institutions designated as a test site will have a huge head start on
eliminating systemic bugs and streamlining drone flight. The six sites chosen were an Air Force
base in New York, Virginia Tech, University of Alaska, the State of Nevada, the North Dakota

4
Dryer, Randy. Information Privacy Law Lecture No. 9 - Drones. University of Utah S.J. Quinney College 2013.
https://www.youtube.com/watch?v=Ozkm_eUT-ac. Last visited 5/1/14.
5
Lynch, Jen. "Are Drones Watching You?" (2012). www.eff.org/deeplinks/2012/01/drones-are-watching-you.
6
McNeal, Greg. "A Primer on Domestic Drones: Legal, Policy, and Privacy Implications." (2012).
http://www.forbes.com/sites/gregorymcneal/2012/04/10/a-primer-on-domestic-drones-and-privacy-implications
Last visited 5/1/14.
7
Lynch, Jen. "Are Drones Watching You?" (2012). www.eff.org/deeplinks/2012/01/drones-are-watching-you.
8
Huerta, Michael P. Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace Systems (NAS)
Roadmap: Federal Aviation Aministration, 2013.
http://www.faa.gov/about/initiatives/uas/media/uas_roadmap_2013.pdf. Last Visited 5/1/14
9
Federal Aviation Administration. "FAA Makes Progress with UAS Integration." (2012).
https://www.faa.gov/news/updates/?newsId=68004. Last visited 5/1/14.
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Department of Commerce, and Texas A&M University Corpus Christi. The sites were chosen to
provide a diverse range of geography, climates, and air traffic densities.
10
The FAA has initially
set privacy guidelines that are not very stringent. However, these are set to be reviewed by a
panel to see what will be effective in the future.
11

Unlike pilots of manned aircraft, UAS operators must work without complete sensory
data. This can be problematic. For example, in 2006 a predator drone crashed because the
operator unknowingly turned off the engine.
12
In order to integrate the drones, the FAA is
developing a system in which the drone uses GPS technology to determine location and then
sends this information to the ground where it is integrated into the entire picture monitored by
the Air Traffic Controller. This information will hopefully be integrated with the FAAs new
NextGen control system. The certification process will also require potential pilots to
demonstrate that they have approved credentials and a valid reason for flying. The aircraft will
have to show technological airworthiness and that potential collision with other aircraft is
extremely unlikely.
13

The Current Regulatory Environment

10
Wald, Matthew L. "F.A.A. Picks Diverse Sites To Carry Out Drone Tests." New York Times 163.56637 (2013): A14.
www.nytimes.com
11
Federal Aviation Administration. "Unmanned Aircraft System Test Site Program." Department of Transportation:
FAA, 14 CFR Part 91, 2013. www.faa.gov/about/initiatives/uas/media/UAS_privacy_requirements.pdf. Last visited
5/1/14.
12
CBS News. "Groups Concerned Over Arming of Domestic Drones." CBS, 2012.
http://washington.cbslocal.com/2012/05/23/groups-concerned-over-arming-of-domestic-drones. Last visited
5/1/14.
13
Huerta, Michael P. Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace Systems (NAS)
Roadmap: Federal Aviation Aministration, 2013.
http://www.faa.gov/about/initiatives/uas/media/uas_roadmap_2013.pdf. Last Visited 5/1/14
Gilbert 5

Existing FAA regulations have simply been extended from manned aircraft, but this
policy has caused legitimate questions over what the FAA can and cannot control. First of all,
Congress never granted the FAA control over drones in the FAA Reform Act. Secondly, UASs are
never defined in the US code provisions governing air space and air safety. Thirdly, the FAA has
admitted it currently applies the rules for manned aircraft to the operation of unmanned
aircraft. It would set a bad precedent if the government were allowed to take regulations for
one kind of technology and apply them to another kind. Finally, Class G Airspace (up to 1200
feet above ground level) is designated as completely uncontrolled and it appears that the FAA
might not have the ability to control aircraft flown in this region. In response to these criticisms
the FAA has pointed to US Codes saying, The FAA is responsible for the safety of the National
Airspace System (NAS). This includes all NAS users, including those operating unmanned aircraft
systems.
14

Two lawsuits have already been filed challenging the FAAs authority to regulate drones.
The first was filed by an Austrian videographer who was fined $10,000 for reckless operation of
a drone filming the University of Virginia. A judge overturned the FAAs fine on the grounds that
a drone was essentially equivalent to a model airplane.
15
The FAA has appealed, but based on
the success of this decision, a Texas search and rescue agency (EquuSearch) is challenging the
FAAs mandate that they stop using drones. EquuSearch called this decision unlawful, arbitrary

14
Weaver, John Frank. "Free the Beer Drones." (2014). www.slate.com
15
Nicas, Jack. "FAA Unswayed by Do-Good Drones." Wall Street Journal - Eastern Edition 263.80 (2014): B1-B5.
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[and] an abuse of discretion.
16
It will be interesting how these cases unfold and whether the
Supreme Court will need to make a ruling.
17

Present Uses of Drones for Law Enforcement Purposes
Law enforcement agencies throughout the United States have actually used drones for
almost a decade under the existing common law guidelines. For example, Predator drones have
been used to survey the 2,000 mile long border with Mexico as well as the northern border
with Canada since 2005. According to Homeland Security, in the last five years alone Predators
have helped capture 40,000 pounds of illegal drugs and 7000 illegal immigrants.
18
Additionally,
drones equipped with infrared cameras have been used for search and rescue of lost hikers.
19

Drones can inform public safety agencies of wildfires or mudslides and provide information to
emergency response crews.
A more sensitive issue is using drones for the apprehension of criminals. One recent
incident in North Dakota showed the potential benefits of using drones for this purpose. In June
of 2011, six cattle were stolen from a North Dakota ranch. A sheriff went looking for the cattle
on the property of the suspected thieves, but was threatened by men carrying rifles. The sheriff
came back the next day with reinforcements, but before entering the property, a predator
drone from the U.S.-Canada border circled high above the property. Using sensitive thermal

16
Feith, David. "The Drone That Shot Down the Feds." Wall Street Journal - Eastern Edition 263.67 (2014): A11-
A11.
17
For more information on the current regulatory environment see: Kokotaylo, Kristopher. "Drones and the
Potential Redefinition of Privacy." (2014). http://www.law360.com/articles/523919/drones-and-the-potential-
redefinition-of-privacy. Last visited 5/1/14.
18
Sherman, Christopher. "Military drones added to Border Patrol's arsenal." 2011. A14-A14.
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imaging cameras, it was able to locate the men and ascertain that everyone on the property
was currently unarmed. This allowed the police officers to rush in, apprehend the ranchers
responsible, and locate the missing cattle.
20
While this was certainly a victory for law
enforcement protecting the people, it opens up questions about use of drones to survey the
public, and what kinds of force drones can be equipped to carry. The sheriff did have a search
warrant before flying the drone overhead, but would this leaves open the question of whether
this same sort of surveillance be allowed without a warrant.
21

States are moving quickly to protect their citizens privacy rights while still making their
state desirable for the growing drone industry. In 2013, 43 states introduced 130 bills
addressing UASs. By the end of the year, 13 states had passed laws and 11 states passed
resolutions on the issue. Most of the laws require a warrant or exigent circumstances before
law enforcement agencies can fly a drone. A number of states including Maryland, Hawaii,
Nevada, and North Dakota also appropriated funds for drone facilities. North Carolina and
North Dakota passed laws for the head of the Department of Transportation to approve the
request for drone use rather than requiring a warrant. Virginia prohibited use by any state law
enforcement agencies until 2015. Idahos law also establishes guidelines for drone use by

19
P. Doherty, P. Rudol. A UAV Search and Rescue Scenario with Human Body Detection and Geolocalization.
Advances in Artificial Intelligence, Lecture notes in Computer Science, vol. 4830/2007, Springer, Berlin/Heidelberg
(2007), pp. 113
20
Peck, Michael. "Predator Drone Sends North Dakota Man to Jail." (2014). www.forbes.com.
Also see: Koebler, Jason. "North Dakota Man Sentenced to Jail in Controversial Drone-Arrest Case." (2014).
www.usnews.com/news/articles/2014/01/15/north-dakota-man-sentenced-to-jail-in-controversial-drone-arrest-
case. Last visited 5/1/14
21
For more information related to warrantless government drone surveillance see: Jennifer O'Brien, Warrantless
Government Drone Surveillance: A Challenge to the Fourth Amendment, 30 J. Marshall J. Info. Tech. & Privacy L.
155 (2013)
Gilbert 8

private citizens. Many of the resolutions adopted by states (Alabama, California, Georgia, Idaho,
Michigan, North Dakota, and Nevada) recognize the benefit of a thriving UAS industry.
22

The Ogden Police department was one of the first to apply for a permit from the FAA.
The police wanted to acquire a blimp-like drone to use for night time surveillance in Class G
airspace. The drone would be equipped with low-light cameras and would be used to patrol
high crime areas. However, the task was deemed unsafe because the police department did not
have a certified operator so the permit was rejected. They did plan to work closely with the
drone developer to train an operator, but this was not enough for the FAA.
23
Additionally, the
Box Elder police department recently acquired a drone to use solely for search and rescue
purposes in the local mountains.
24

Supreme Court Cases with a Potential Impact on Drone Surveillance
Drones are not inherently invasive of privacy, but may be equipped with numerous
technologies which can be highly invasive. No Supreme Court cases have been decided
regarding Fourth Amendment privacy issues with drone use. However, fixed wing aircraft cases
can help predict how courts will treat potential UAS privacy cases. In California v. Ciraolo, 476
U.S. 207 (1986), Ciraolo was convicted of growing marijuana in his backyard. The yard was
surrounded by a tall fence, but police flew over the area in a private plane and were able to
identify marijuana and acquire a warrant to search the house. The trial court denied Ciraolos

22
National Conference of State Legislatures. 2013 Unmanned Aircraft System (UAS) Legislation: NCSL, 2013.
http://www.ncsl.org/research/civil-and-criminal-justice/unmanned-aerial-vehicles.aspx. Last visited 5/1/14.
23
Electronic Frontier Foundation. "Ogden, Utah Police Department Records." Ogden Police Department.
www.eff.org/document/ogden-police-department-utah. Last visited 5/1/14.
Gilbert 9

motion to suppress the admissibility of the marijuana evidence on the grounds that the fly over
violated his Fourth Amendment rights. Ciraolo was subsequently convicted. The California
Court of Appeals reversed his conviction because they suppressed the evidence from the
flyover. They found it was significant that the flyover was targeted and not the result of a
routine patrol, and thus a direct and unauthorized intrusion into the home. However, the
United States Supreme Court reinstated Ciraolos conviction on the grounds that the
observation took place within public navigable airspace and was not physically intrusive. Thus
the marijuana was still in plain view (an exception to the requirement of a warrant) and the
surveillance was not a Fourth Amendment search.
25

In Dow Chemical Company v. United States, 476 U.S. 227 (1986), the Court again upheld
the right to take photography of uncovered areas from the publicly navigable airspace. Unlike in
California v. Ciraolo, the Environmental Protection Agency used a high powered camera to take
images from the air. Additionally, Dow had taken significant measures to protect itself from
intrusion on the ground with guards and barbed wire fences. However, the court still ruled that
the surveillance was legal because Dow had taken no effort to protect itself from aerial
surveillance despite being near an airport where planes were frequently taking off and
landing.
26

However, two other cases could serve to limit the scope of law enforcement drone use.
In United States v. Jones, 565 U.S. (2012), Antoine Jones was convicted of trafficking narcotics.

24
Anderson, Mike. "Drone to help Box Elder department deputies in search and rescue operations." Deseret News
2014. www.deseretnews.com/article/865598701/Drone-to-help-Box-Elder-deputies-in-search-and-rescue-
operations.html?pg=all. Last visited 5/1/14.
25
California v. Ciraolo at 215
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In order to obtain the evidence necessary to convict Jones, police installed a GPS tracking
device on Jones car. He was tracked 24/7 and his movements linked him to the drug
operations stash house. When Jones moved to suppress the GPS evidence, it was initially
rejected because A person travelling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to another.
27
However, on
appeal the United States Supreme Court agreed that a tracking device installed on a vehicle
constituted a search under the Fourth Amendment and therefore required a warrant.
28
While
the Court was unanimous, there were several different reasons why the judges felt it
constituted a search.
The majority, authored by Justice Scalia, argued that the installation of a device on the
suspects car was a physical intrusion on his effects. This constituted a trespass by law
enforcement for which a warrant was required.
29
In a concurring opinion, Justice Alito argued
that short term monitoring of a persons movements on public streets was entirely reasonable,
but the use of long term surveillance methods infringed on the defendants privacy rights.
Tracking every single movement told a broader story about the individual that violated the
reasonable expectation of privacy test established by a prior decision of the court in Katz v.
United States 1389 U.S. 347 (1967).
30
Justice Sotomayor agreed with the majority opinion, but
also wrote that new tests will need to be considered with technological developments.
31


26
Dow Chemical at 237
27
United States v. Jones at 948 (from United States v. Knotts, 460 U.S. 276 (1983)).
28
Id. at 952
29
Id. at 948
30
Id. at 959
31
Id. at 955
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Scalias majority opinion was a specific case decision that would only apply where a trespass
occurred, but Alitos opinion could have implications for long term surveillance in drone cases.
In another case, Kyllo vs. United States, 533 U.S. 27 (2001), police were able to obtain a
search warrant based on evidence used from a thermal imaging camera operated from a police
car on a public street outside the suspects home. The camera showed heating lamps were likely
being used to grow marijuana in Kyllos home. The court concluded that the scan with a
thermal imaging camera was a search (and thus required a warrant) because it was conducted
with technology that was not readily available to the general public. Additionally, the Supreme
Court has always given special privacy rights to the home.
32
Thus Kyllo would have a reasonable
expectation that his home would not be searched with this type of technology even though
there was no physical intrusion.
33

The Privacy Implications of Drones
The courts opinions in the Ciraolo and Dow Chemical have articulated a doctrine where
there is no reasonable expectation of privacy from anywhere within a public vantage point.
34

While someone might believe they have a reasonable expectation of privacy from surveillance
on the twentieth floor of an apartment building, this doctrine would say that a drone flying by

32
Silverman v. United States, 365 U. S. 505, 511 (1961).
Also refer to: Dryer, Randy. Information Privacy Law Lecture No. 16 Privacy at Home. University of Utah S.J.
Quinney College 2013. www.youtube.com/watch?v=RDClWKixyJ8. Last visited 5/1/14.
33
Kyllo at 35
For a lengthier discussion on Fourth Amendment implications of drone surveillance: Thompson II, Richard M.
"Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses ".
Congressional Research Service 2013. http://www.fas.org/sgp/crs/natsec/R42701.pdf. Last visited 5/1/14.
34
Letter from Representatives Edward J. Markey and Joe Barton, Co-Chairmen of the Congressional Bi-Partisan
Privacy Caucus, to Michael P. Huerta, Acting Administrator of the Federal Aviation Administration (April 19, 2012)
Gilbert 12

on the street could legally take pictures of the exposed areas of the apartment because it is
within the public airspace. Additionally, manned aircraft that are currently commonly deployed
by law enforcement agencies can easily be seen or heard overhead. However, drones makers
have launched drones that are only the size of a dragonfly, fly silently, and/or fly up to 20,000
feet in the air while still equipped with high definition cameras that can capture everything.
These drones can also carry live-feed video cameras, infrared cameras, heat sensors, and
radar.
35
New Predator drones can monitor up to 65 people simultaneously from almost a 25
mile range. They can also carry equipment that can eavesdrop on electronic transmissions,
crack Wi-Fi networks, and intercept cell phone conversations without the knowledge of the
provider.
36
These cameras and equipment deployed on military drones are not new, but the
application to the versatility of civilian unmanned aircraft is new. The courts decisions in Jones
and Kylo cases could limit the length of legal surveillance and the type of technology with which
drones can be equipped.
Nobody has an issue when this technology is used to find a lost hiker, but when it is
applied to surveillance of citizens in urban settings it becomes a potential privacy issue. While
police agencies have said they only intend to use the drones to survey known criminals or to
conduct search and rescue, it is inevitable that they begin to overstep these guidelines if there
is no law outlining drone usage. FBI drone use is classified, but Senator Rand Paul has pushed
the FBI to release how it is using drones. In 2013, the FBI responded that it has used drones a
total of ten times. Two of these uses have been for national security cases and eight for criminal

35
Lynch, Jen. "Are Drones Watching You?" (2012). www.eff.org/deeplinks/2012/01/drones-are-watching-you. Last
visited 5/1/14.
36
Id
Gilbert 13

cases. Senator Paul also released a letter from FBI director Stephen Kelly. Kelly said that he does
not believe the FBI will ever need to acquire a warrant as long as they are used within existing
guidelines. Kelly was referring to the Ciraolo and Dow Chemical cases, but he has also said that
the drones do not conduct extended surveillance.
37

It is unclear what types of technology the drones are using in these secret cases. With
facial recognition technology becoming more and more common, should drones with high
powered cameras be allowed to employ it? The Department of Homeland Security and FBI both
maintain databases of faces, which are quickly growing larger and larger.
38
This information
potentially could be used to pinpoint a persons attendance of a political rally or other event
that the government could use to label that person as a political dissident. This type of use
steps well over the line into Big Brother territory. The broad range of the surveillance collected
by drones can be used for many purposes and I think the FBI should have a national agency
(similar to the FISC court) it must report to on drone uses.
Drone Legislation in Utah
After several revisions, Utahs legislature in 2014 passed S.B. 167 to protect citizens
from improper drone use by law enforcement. The law prevents any data collected by a drone
from being used in court unless the data was acquired with a search warrant. The law also

37
Koebler, Jason. "The FBI Uses Drones for Surveillance, Without Clear Guidelines." U.S. News Digital Weekly 5.25
(2013): 9-9. www.usnews.com/news/articles/2013/06/19/fbi-uses-drones-for-surveillance-without-clear-
guidelines. Last visited 5/1/14.
38
Lynch, Jen. "FBI Plans to Have 52 Million Photos in its NGI Face Recognition Database by Next Year." (2014).
www.eff.org/deeplinks/2014/04/fbi-plans-have-52-million-photos-its-ngi-face-recognition-database-next-year.
Last visited 5/1/14.
For more information see: Reardon, Sara. "If the Feds fit the face." New Scientist 215.2880 (2012): 20-20.

Gilbert 14

requires that all data collected that is not a legal target of the drone must be destroyed as soon
as reasonably possible. However, the data does not have to be destroyed if it shows evidence of
a crime in progress or an emergency situation. The law also requires a law enforcement agency
to make an annual report detailing the number of times a drone was used, how it was used,
what data was collected, how many warrants were issued for the drone use, how many
warrants were applied for but rejected, and when the drone is used by a government agency
other than a law enforcement agency.
39

Previous versions of the bill required law enforcement agencies to obtain a warrant to
even fly the drone. Previous versions also prevented drones from using facial recognition
devices, biometric matching, or putting weapons on drones. These prohibitions were deleted
from the final version of the bill that was adopted. While many privacy advocates have lauded
the law, others say the lack of these provisions dilutes it beyond what it should cover.
40
They
argue that law enforcement can still use a drone to survey the public whenever they want and
establish a database labeling possible troublemakers using this database. Expanding drone use
will bring new income and jobs to Utah, but it could also lead to a diminishing sense of personal
privacy.
Unanswered Privacy Questions
The ramifications of the Utah law are significant, but it still leaves many questions. For
example, while data cannot be stored longer than is reasonable, the breadth and quality of the

39
Wolverton, Joe. "Utah Legislature Sends Drone Surveillance Nullifying Bill to Governor ": The New American,
2013. www.thenewamerican.com/usnews/constitution/item/17854-utah-legislature-sends-drone-surveillance-
nullifying-bill-to-governor. Last visited 5/1/14.
Gilbert 15

potential data acquired with drones still makes it dangerous should it be hacked. With three
components to the drone the flier, the data link, and the control station it makes the entire
system three times as vulnerable. While this is far more concerning as a security issue to
protect against future terrorist attacks, it is also a privacy issue as well.
The unanswered question of the technology drones can be equipped with is most
concerning to me. I believe that the point when the government begins overstepping its bounds
is when the drones become equipped with technology that can recognize and pinpoint the
individual. While facial recognition could be used to quickly search a crowd for a potential
suspect, I believe this benefit is outweighed by the potential for misuse of this information as
well as the risk should it be lost or hacked. On the other hand, utilizing drones with surveillance
equipment such as thermal imaging cameras or cameras with extremely high powered lenses
seems acceptable in search and rescue activities. These tools would provide the police with the
gear they need for surveillance and reconnaissance of lost hikers. If we required policeman to
get a warrant or approval from a judge every time they wanted to go search for a lost hiker, it
would waste valuable time that could be used finding the hiker. I dont think it would be right to
force police to acquire a warrant whenever they wanted to use a drone, but I also think the
existing law is too lenient. It should be revised to force police to have a warrant when
conducting surveillance of civilians that extends beyond search and rescue, not just when they
plan to use the evidence in court. One of the provisions of the Katz privacy test is whether you
have manifested the desire to maintain your privacy. Right now, there are ways of protecting
yourself from intrusion, and even surveillance from the air while in the home. But if that

40
Id
Gilbert 16

surveillance extends beyond the home and includes high definition cameras with facial
recognition software on drones that fly silently, it is very difficult to escape. For this reason
facial recognition devices on law enforcement drones should be banned.
Drones with Weapons
A recent demonstration at the SXSW conference in Texas demonstrated a drone hitting
an intern with 80,000 volts of electricity. On one hand the potential benefits of a drone like this
are potentially life-saving. Police could remotely control drones while chasing criminals instead
of putting their own lives on the line.
41
Once approached, if the criminal tries to turn and run
then he or she will be tasered. Also, in a shootout situation the drone could be used to fly into
areas too risky for the police to enter and subdue the shooter. However, in my opinion,
equipping a drone with force, especially lethal force, is acceptable in a war zone, not a city area
with civilians close by.
Some have argued that equipping a drone with a weapon and a police man operating it
is essentially no different from giving the policeman the weapon. Randy McDaniel of the
Montgomery Sherriffs Department in Texas recently received approval from the FAA to buy an
armed drone. He argues that rubber bullets and tear gas are things that law enforcement
utilizes day in and day out and in certain situations it might be advantageous to have this type
of system.
42
However, I believe there is a huge distinction between officers accessing the
context of a crime scene through a drone versus an officer physically responding at the scene.

41
Matyszczyk, Chris. "Useful! The drone with an 80,000-volt stun gun." CNET, 2014. www.cnet.com/news/useful-
the-drone-with-an-80000-volt-stun-gun. Last visited 5/1/14.
Gilbert 17

An officer using a drone cannot gain the full ground perspective from their miniature view
through the drone camera. Without this full perspective, it is impossible to analyze the full
situation. Drones absolutely should be used to conduct surveillance in these types of situations,
but not to actually pull the trigger. Releasing this technology into common use makes it much
more dangerous. What if the drone fails and criminals are able to get their hands on one and
turn it against police? A drone equipped with a stun gun could easily be modified to control a
more powerful and deadly gun. It is unjust for a citizen, even one who committed a crime to be
subdued by a drone in a public space when there is no officer physically present.
43
These
regulations should extend to commercial drones as well. It is conceivable that a drone flying
around the house with a taser could be a replacement for an alarm system.
44
Again, the risks of
misuse and attacking an innocent visitor outweigh the security benefits of such a situation.
Conclusion
While the rapid advancement of drone technology has made us reconsider the current
common law defining the scope of permissible police surveillance, I believe legislators in Utah
have made a positive initial step towards defining appropriate bounds for drones. However, this
law should be amended to be made more restrictive. These restrictions can be relaxed in the
future as people become more comfortable with drones as an integral part of our society.
Further restrictions should address: non-law enforcement drone use by the government, what

42
CBS News. "Groups Concerned Over Arming of Domestic Drones." CBS, 2012.
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to do with footage of innocent persons that is included with surveillance of a suspect, how long
video tapes will be kept, who can access the video, regulations on commercial uses,
punishments for misuse by paparazzi or stalkers, whether there should be a time restraint on
how long the drone can be flown, and further qualifications on emergency situations.
The current case law might not uphold a reasonable expectation of being free from
drone surveillance, so it is important that the legislature defend this right. In order to prevent a
mass public outcry on the scale of the NSA, the federal government should make provisions
similar to what the Utah bill did where they must report drone use. I think it is also important
that facial recognition devices and weapons are initially outlawed on law enforcement drones.
While drones will be a huge benefit to law enforcement agencies, it is important that we take
the initial steps to ensure they are not infringing, even accidentally, on our privacy rights.