Drone Surveillance May Be Unconstitutional 

Some legal experts contend that a 2012 US Supreme Court ruling could make the use of drones illegal for certain types of police work.

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In an interview with the San Francisco Chronicle, Ahern denied that he had tried to evade public scrutiny in buying the drone and said it would not be used for blanket surveillance. "This device is used for mission-specific incidents," he said. "We strive to gain the public's trust in everything we do, and I would never do anything of this nature that would destroy the public's trust beyond repair."

Sheriff Ahern and his staff also have repeatedly stated that the capabilities of a drone are not that different from those of a helicopter or survey plane. But Villasenor said drones are markedly different from helicopters and surveillance aircraft because they are cheaper to purchase and maintain, and because they require less fuel and manpower to operate. Drones also can be launched from far more locations than traditional aircraft — and can be kept aloft for long periods of time.

Internal sheriff's office documents obtained by the Electronic Frontier Foundation (EFF) also indicate that sheriff's personnel have different plans for the drones than what Ahern has publicly described. A July 20, 2012 memo from sheriff's Captain Tom Madigan elucidated potential uses for drones in emergency response, explosives disposal, search and rescue, and a range of policing uses that raise civil liberties concerns.

"The Alameda County Tactical Commanders were consulted, a regional group of SWAT team commanders throughout the County of Alameda. A UAS [drone] would be valuable to assist with barricaded suspects, surveillance (investigative and tactical) perimeters, intelligence gathering, rough terrain, suspicious persons, large crowd control disturbances, etc.," the memo says.

Drone-mounted cameras also can be equipped with Forward-Looking Infrared (FLIR) technology that reads heat signatures through buildings, and intelligent video programs, such as facial recognition software that acts as a sort of license-plate reader for people. All three bids from drone manufacturers submitted to the Alameda County Sheriff's Office included FLIR camera packages for the drones.

FLIR technology also raises Fourth Amendment issues, Siavoshy said. The US Supreme Court case of Kyllo v. United States ruled that the use of a heat-detection device by law enforcement to find an indoor marijuana grow required a warrant. Thus, if the sheriff's office wanted to use the drones' FLIR capabilities, it would need some form of judicial approval beforehand. "They'd need a warrant before using this one on a home," said Siavoshy.

The EFF and ACLU want a public dialogue about the use of drones by local law enforcement and seek to establish a set of guidelines that would protect individual privacy and restrict how drones could be used during domestic policing. In a December 3 letter to the Alameda County Board of Supervisors, ACLU attorney Linda Lye outlined the case for public discourse and deliberation before making the decision to approve a drone purchase.

"Because drones pose unique dangers for privacy invasions and are subject to potential abuse, any decision by the County to purchase a drone should be made through an open and transparent process with ample opportunity for public participation and comment," the letter read.

If the Alameda County Board of Supervisors approves Sheriff Ahern's request to spend state grant money on a drone, the bids solicited by the sheriff's office make it clear that county taxpayers will have to foot the bill for it. Sheriff's Captain Madigan stated in his July 20 memo that the cost of the requested drone model, Dragon Fly UAS with live video downlink and FLIR, is $30,000. But documents released last month by the ACLU of Northern California show that the Alameda County Sheriff's Office already received bids for drones from Aeryon, Lockheed Martin, and ING. Aeryon offered two separate deals with different parts and equipment at $67,500 and $107,500; Lockheed Martin gave a quote of $49,981 for its QR425 QuadRotor model; and Canadian firm ING provided options that cost between $90,495 and $135,995. Any of those choices, in other words, could require the sheriff's office to use county funds to make up the difference.

The Sheriff's Office also could spend the state grant money that it plans to use for a drone on other, less controversial policing, needs — such as buying additional equipment for the county crime lab or funding additional personnel who might be able to help its counterparts in Oakland with a staggering backload of ballistics and forensics evidence.

But California law enforcement agencies appear to be very eager to spend taxpayer funds on drones rather than traditional policing. Documents obtained by the EFF in collaboration with the open records website MuckRock.com reveal that the San Francisco Police Department's $100,000 request to purchase a Remotely Piloted Vehicle was rejected by the local Urban Area Security Initiative, a regional Homeland Security administrative agency. In San Diego, where the Border Patrol already operates several Predator B drones for reconnaissance along the US-Mexico border, county Sheriff William Gore announced his intention last month to purchase a drone.

The California legislature's new Democratic supermajority, however, could create new regulations for drones in 2013. State Senator Alex Padilla from the San Fernando Valley introduced Senate Bill 15 on December 3, which would attempt to establish rules for drone usage in California.

Padilla's bill seeks to bring legislators into a discourse about the "new challenges to the privacy and due process rights of Californians" posed by drones. The most specific provision in SB15 recommends that data, including photographs, video, and recordings of people in public and private settings, should be kept to a minimum and retained in compliance with existing laws governing privacy.

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