US: Drones, police and the limits of legislation

Recently, outgoing director of the FBI Robert Mueller revealed that his agency has used drones to conduct surveillance in the United States. Mueller’s casual admission serves as an opportune moment for drone enthusiasts: introducing the FBI’s domestic drone programme with nonchalance, he swung wide the door on which drooling police departments have long been banging.

For the past year, law enforcement agencies have tried with varying success to convince their wary constituents that drones are necessary for such innocuous, even beneficent, endeavors as conducting search and rescue operations, detecting forest fires and tracking down wandering Alzheimer patients.

Senator Dianne Feinstein pressed Mueller on the privacy risks drones pose to US citizens, but the FBI director needed only to reassure her that his agency had used drones in a “narrowly focused” way in order to quell any qualms the California Senator and Head of the Senate Intelligence Committee might have had. Hardly a champion of the public’s right to privacy, however, Feinstein distinguishes herself as one of the most vocal opponents of transparency as well as a leader of the government’s war on whistleblowers. 

However, others are not so easily appeased.

“The FBI is in its own ball park in terms of rules and techniques. They really have their own rulebook… But local law enforcement has been secretive and very un-transparent about their desires to use drones so this will give them further ammunition that they don’t need guidelines to adopt drones,” said Nadia Kayyali, a legal fellow with the Bill of Rights Defense Committee, in an interview with me.

“Troubling that Feinstein notes Americans’ privacy concerns regarding drones, but the[n] has never seen – or apparently requested – the FBI’s privacy limitations that exist to address those concerns,” Micah Zenko of the Council of Foreign Relations noted on his blog on June 21.

But the notion that simply writing up and codifying a set of regulations for the domestic use of drones would be a silver bullet that adequately addresses privacy and Fourth Amendment concerns is a dubious one: police departments operate with near total impunity and very little transparency. With no accountability, rules have little meaning – as any grieving family member of someone extra-judicially shot and killed by the police will attest.

To shed further light on the deeply flawed mechanics of holding police accountable even to their own regulations, I spoke with Andrea Pritchett. Andrea has been overseeing police conduct in Berkeley, California for 23 years. She helped found Berkeley CopWatch, a grassroots group that monitors the conduct of the police on Berkeley’s streets. Every week, the group’s members and volunteers of all ages ride through the streets of Berkeley, listening to the police scanner and shadowing the path of the police so they can document their conduct. Sometimes, Andrea and other CopWatch workers traverse the city on foot, getting to know people on the streets, hearing their stories and learning about their interactions with the police.

Speaking at a public forum held last month in Berkeley to discuss the plans of Alameda County Sheriff’s Department to acquire a drone, Pritchett said: “It’s hard enough watching what police do on the ground, so if it all goes up in the air I don’t know what we’re going to do”.

Pritchett’s words bring what has been a largely theoretical conversation about domestic drone oversight into sharp and concrete focus. She has committed much of her life to the hard task of documenting police activities in an effort to hold them to account, and is intimate with the environment of impunity in which Berkeley police operate, their disregard for community concerns and the reticence with which they share information with the public.

The heavily redacted documents on the FBI’s drone programmes, released by the FAA a day after Mueller’s disclosure, give a glimpse into just how (un)transparent any law enforcement agency’s drone programme will likely be and should reaffirm public skepticism.

Aside from learning that the FBI has operated UAV’s since 2010, according to the Washington Post “the documents provide virtually no details” on the FBI’s use of drones in US airspace, invoking “the need to keep law enforcement operations confidential”.

“We have tried to monitor police conduct and we’ve been stymied at every point,” Pritchett said. Pritchett has requested public records on the demographic statistics of individuals tracked, photographed and surveilled by the BPD in order to quantify racial profiling, and was told by the department they “didn’t keep that information”.

The limits of legislation

Last February, the Electronic Frontier Foundation revealed that 81 county and city law enforcement agencies had quietly applied for certificates of authorisation from the Federal Aviation Administration so that they could operate unmanned aerial vehicles in their localities. Police and sheriffs had simply sought acquisition of drones without consulting their communities or proposing any sort of policy framework that would govern the use of such vehicles.

In response, most states and some municipalities drew up legislation to regulate local law enforcement agencies’ uses of drones. Many of those bills – introduced in all but seven states – adopted the language from model legislation and recommendations put forward by civil libertarian organisations such as the ACLU and the Tenth Amendment Center.

However, Kayyali pointed out that in some cases the states’ proposed regulations had so many loopholes they appeared to be aimed at mollifying the public rather than effectively protecting its civil liberties.

Furthermore, according to Kayyali, largely absent in many of these pending bills is a crucial component, the right to sue law enforcement agencies for damages, that would enable civilians to hold the agencies accountable to any regulations. Of the six state bills that have been signed into law thus far, only Florida’s and Texas’ include such a right to civil litigation.

Norm Stamper, the former Chief of Police in Seattle, Washington, is now an outspoken critic of police conduct in America. In an interview with me he noted that the 18,000 jurisdictions in the country and police and sheriff’s departments operate with varying protocols and relationships to their communities.

“There should be a routinised path of accountability so that the police and community are involved in drafting and articulating policies and procedures together,” Stamper said. “It’s critical that there be a full, authentic partnership between police and civil libertarians.”

But as of now, that kind of cooperation doesn’t exist: “Police operate unilaterally, and that is unacceptable and frightening,” Stamper said. “I don’t have confidence that American law enforcement is ready for that seamless partnership between themselves and the community.”

Civil liberties lawyers have maintainedthat with stringent regulations, it’s possible for law enforcement to adopt drone technology the “right” way. While it’s clear the establishment of such regulations is crucial, it is only the first step and one that won’t make law enforcement’s thuggish behaviour or lack of accountability magically disappear. Civilians will continue to have to do battle to enforce regulations. That battle is already an uphill one and with drones to worry about, it will just get steeper.

Just ask a veteran of this struggle, Andrea Pritchett.

Charlotte Silver is a journalist based in San Francisco and the West Bank. She is a graduate of Stanford University. 

Follow her on Twitter: @CharEsilver