Warrantless Operations of Public Use Drones: Considerations for Government Agencies

By McNeal, Gregory S.; Goodwin, William et al. | Fordham Urban Law Journal, July 2017 | Go to article overview

Warrantless Operations of Public Use Drones: Considerations for Government Agencies


McNeal, Gregory S., Goodwin, William, Jones, Sezen, Fordham Urban Law Journal


ABSTRACT

The benefits of drones continue to transform our lives and nowhere is this more apparent than with the use of drones by local governments. While these benefits are tremendous, residents often express privacy concerns and fear of persistent surveillance associated with law enforcements deployment of drones. In response, critics have made knee jerk reactions to attempt to apply warrant requirements prior to police use of drones. Outside the law enforcement context, civic uses of drones face similar challenges to deployment, so long as government actors must operate under a traditional administrative warrant analysis.

This Article advocates that well established aerial surveillance law is applicable to both law enforcement use of drones as well as other public uses of drones. According to well established case law starting with California v. Ciraolo, (1) observations made by law enforcement are allowable sans warrant if they occur in public navigable airspace or from a place where the officer had a right to be. Such an analysis should be applicable to civic uses of drones when determining whether an administrative warrant is required prior to deploying public use drones for code enforcement and other municipal inspections. This Article also explores how government agencies can change negative perceptions of drones in their communities through adoption of proper policies and procedures.

TABLE OF CONTENTS

Introduction                                                     704
I. Current Federal Framework for Unmanned Aircraft               709
II. Aerial Surveillance Law under the Fourth Amendment and
    Property Rights as Applied to Law Enforcement                711
III. Code Enforcement use of Drones without Administrative
     Warrants                                                    713
     A. Public Vantage Points                                    715
     B. Consent                                                  716
     C. Home and Property Inspections                            716
IV. Government Agencies Should Create Clear Policies and
    Procedures for Public Use Drones                             718
    A. Transparency and Accountability Measures                  718
    B. Data Retention                                            720
    C. Safety and Training                                       721
Conclusion                                                       723

INTRODUCTION

The evolution of drones, from military weapons to commercial tools, continues to transform civic life and nowhere is that more apparent than in the use of drones by cities themselves. Across the world, drones are becoming increasingly popular for public use. Cities like Modesto, California use drones to assist search-and-rescue efforts and deliver aerial imagery to law enforcement during criminal pursuits; (2) the Tampa Bay Port Authority Board of Commissioners intends to use drones to survey properties and construction projects; (3) the Minnesota Department of Transportation is using drones to inspect bridges and highways; (4) and Somerville, Massachusetts uses drones to survey municipal buildings for snow build-up. (5) Other intended public uses of drones operated by government agencies include:

* Aerial photography and filming of city events to be used for marketing purposes;

* Property inspections, code enforcement, and appraisals; (6)

* Firefighting activities; (7)

* Accident or crime scene investigation; (8)

* Ambulance and defibrillator drones; (9)

* Agricultural inspections; (10)

* Scientific research (11) on natural resources, wildlands, and waterways; (12)

* Tactical advantage and use in hazardous and hostile situations. (13)

The way private businesses use drones will illuminate new and more cost-effective ways of carrying out government business, while increasing efficiency and reducing the risk of death or injury to government personnel. …

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