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Is “Big Brother” watching us? A few weeks ago, Los Angeles Sheriff Jim McDonnell held a news conference at the Hall of Justice to announce that the use of a drone—specifically an “unmanned aerial vehicle”—for search-and-rescue, bomb detection and certain hostage situations is a good idea to help keep the public and law enforcement personnel safe. Many law enforcement entities across the nation—including the Los Angeles Police Department—have purchased such aerial reconnaissance devices to assist in their efforts to increase public safety and to keep at least one-step ahead of criminal activity.

Not long after McDonnell’s announcement, protesters converged at a meeting of the Board of Supervisors to voice their concern that drones are nothing more than another step toward the militarization of the nation’s law enforcement and can be used to spy on ordinary citizens under the guise of public safety. A group called Drone-Free LASD/No Drones LA cited the long history of mistrust that some communities may harbor with the Sheriff’s Department and believe this new technology could be used for purposes unrelated to investigation procedure. Representatives of the group said “we cannot trust the Sheriff’s Department” to keep its word that the drone will not be used as an intelligence gathering device rather than its stated purpose for emergency use. Presently, the remote controlled unit would be fitted with an on-board video camera and would be assigned to the department’s Special Enforcement Bureau which comprises the Emergency Services, Arson/Explosive and HazMat details.

A looming threat to privacy?

McDonnell said the drone can gather “otherwise inaccessible” information and provide his deputies with critical, real-time information to make “better choices” in an on-going scenario. The coalition, however, said that law enforcement can also use drones to unlawfully monitor non-criminal activity and possibly build up criminal files on otherwise innocent civilians. “It’s an insidious tool for everyday policing,” opponents argue, that should not go forward because of fears of an “Orwellian” society or, in its most probable result, violations of constitutional protections, specifically the fourth and fifth amendments that prohibit unreasonable search and seizure and depravation of liberty respectively.

Drone-Free LASD released a statement prior to confronting McDonnell that pointed to the growing arsenal of tactical weapons now common among law enforcement, and that adding drones will further the divide between the community and those sworn to protect it.

“We expect LASD to broaden its usage of drone within the context of “mission creep” [which] alludes to the application of a specific tactic, expanding beyond the original stated scope towards new and enlarged purposes. There is a long history of violence and corruption within the Sheriff’s department’s ranks and jail system including the physical and emotional abuse of community members, and a deep conspiracy to lie about this violence.” They also stated that the LASD has created the “largest capacity” outside the FBI to gather biometric data on county residents.

Citizen’s group launches protest

Hamid Khan, who earlier founded the Stop LAPD Spying Coalition which prevented that organization from using a pair of drones purchased in 2014, also heads Drone-Free LASD and said McDonnell’s pledge to use the drone only in emergency situations is vague at best. And while Sheriff’s Department policy expressly forbids use of the drone for “random surveillance missions or missions that would violate the privacy rights of the public,” Kahn believes that language could be “changed on a whim” and the unmanned aerial vehicle could be used for surveillance.

“What this represents is the rapid escalation and militarization of police,” Kahn said. His group cited mistrust of the Sheriff’s Department within some communities in light of the controversy at the Men’s Central Jail which led to the conviction of former Undersheriff Paul Tanaka, the firing of several deputies, and the on-going trial of former Sheriff Lee Baca as these cases relate to a federal investigation of inmate abuse and misconduct at the highest levels.

“We have more than 3,000 signatures from citizens who reject the use of surveillance drones by the department,” Kahn continued. “People believe this is a method of social control that can quickly lead to abuse. The department has a history of abusing citizens; they’re among the top five in the nation in relation to officer-involved shootings and resulting deaths.” Kahn’s group plans to continue its campaign against drone use by attending each meeting of the Board of Supervisors until the proposal is rejected.

Eyes over Compton

McDonnell disputes that the drone will be used to spy on innocent people, adding that the dangers of law enforcement can never be eliminated but “this technology can assist us in reducing the impact risks on personnel,” he said. So far, eight deputies have been trained to fly the device which can maneuver up to a mile from its operator and remain airborne for at least 20 minutes. The Sheriff’s Department had to submit to the Federal Aviation Administration (FAA) a list of “tasks” that the drone will carry out such as destination and purpose; the department is required to notify the FAA whenever the device is in flight and maintain some sort of eye contact with it at all times to keep with federal regulations. Those “tasks” referred to are not always known by the FAA because placing the device into service may come about at short notice, possibly making it difficult to quickly inform federal regulators. “We don’t always prohibit the type of flight activity that a law enforcement agency conducts,” said FAA spokesman Ian Gregor. “We do have limitations on the conditions under which a drone can fly.”

California has obtained 30 of the 300 or so “certificates of authorization” issued to U.S. law enforcement agencies for similar vehicles.

Where and when these drones can fly locally has been a controversial issue at least since 2012, when the Sheriff’s Department reportedly flew a drone attached to a fixed-wing Cessna airplane over Compton. Kahn said neither the mayor of Compton nor anyone in the city knew about the incident and the secrecy, he said, is precisely why the public should be wary of this new method of patrolling. “The Compton case is a clear example of the overreach these type of devices can have on the unwitting public,” Kahn said. “They did this without public approval. That’s why we should be concerned about this matter. If they can do that, then what limits will they adhere to?”

Patrolling the border

The Board of Supervisors has since unanimously approved a review of the drone operation by the County inspector general who will evaluate the findings with the civilian oversight commission which serves as a watchdog of the LASD.

Supervisor Janice Hahn represents Compton and noted that while she fully supports the Sheriff’s Department, “…I also share some concerns,” she said. The Compton incident was part of an exercise with Ohio’s Persistent Surveillance Systems which has demonstrated its products with police departments in Baltimore, Philadelphia, and in Dayton, Ohio. From about 10,500 feet above ground, one person takes up only one pixel in an image that covers about 65 square miles. This system weighs about 170 pounds and is therefore too heavy for police drones, but in costing about $1,800 an hour to use, it could prove to be cost effective for larger law enforcement agencies.

The FBI already uses a small fleet of drones for law enforcement surveillance, as does the Customs and Border Patrol, the latter application to better monitor the U.S. border with Mexico. The present state of law—both legislation and court decisions—is still trying to come to grips with how to regulate private drones and how far law enforcement can go without infringing on any “right of privacy” citizens may possess. Apparently, there is no clear line between episodic surveillance “snapshot” and persistent surveillance, even though the effects may be profoundly different. Supreme Court Associate Justice Sonia Sotomayor pointed out in a 2012 case that incremental observations by the government may not violate a person’s privacy, but the “sum total” do. Basically, she explained, it’s the difference between a one-second snapshot and an overhead video that shows the comings and goings of everybody in a city over the course of a week. In such a video, a so-called “pattern-of-life” emerges and any still frame from such a video can be used as a defensible incursion of privacy.

The legal debate

The FBI has reportedly used drones in a “very, very minimal way and very seldom.” Former FBI Director Robert Mueller said as much before the Senate Judiciary Committee in 2013, in explaining that drone use in hostage and barricade situations is preferable because they operate more quietly and are less visible than helicopters. It’s the “critical information,” the department emphasizes, that drones can reveal without introducing serious risk to law enforcement that makes them such a valuable tool. While Mueller said then that the “footprint” of drones was very small, some lawmakers, including California Sen. Diane Feinstein, expressed concern about privacy rights and any violation of unlawful search and seizure. Among Feinstein’s questions of Mueller were “What is the appropriate governmental use for a drone? When do you have to have a warrant?” With the FAA predicting that within 20 years, 30,000 commercial and government drones could by flying in U.S. skies, the American Civil Liberties Union (ACLU) is raising questions about the far-reaching effects of surveillance drones.

“Drone technology is largely a product of our war efforts abroad, but the federal government is repurposing these machines for surveillance purposes at home,” read an ACLU statement from late 2012 in requesting documents under the Freedom of Information Act. “As drone technology continues to become cheaper and more powerful, drones are poised to become part of everyday American life.” The Freedom of Information Act requires federal agencies to release documents to the public, but the law includes exemptions for national security secrets or any information that would harm law enforcement investigations. Some members of Congress have responded to the concern. Sen. Rand Paul of Kentucky went as far as introducing the Preserving Freedom from Unwarranted Surveillance Act to require that police obtain a warrant in most circumstances before using drones. His bill explicitly says evidence gathered without a warrant cannot be used in trial.

Biometric tracking

The Los Angeles protest also spotlighted the controversial use of biometric surveillance. Biometrics are unique data markers that identify using intrinsic physical or behavioral characteristics. Far beyond the traditional use of fingerprints in law enforcement investigations, biometrics also include facial-recognition-ready photographs, iris scans, voice prints, DNA and even a person’s gait. The more sophisticated drones can be equipped with the requisite instruments to track each of these human characteristics as well as monitor human behaviors and individual conversations. Relatively small drones can carry thermal scanners and biometric tools not available to the public.

Unlike the MQ-1 Predator in use in combat situations, law enforcement drones are not weaponized to apply deadly force. However, it is legal for law enforcement in North Dakota to fly drones armed with everything from Tasers to tear gas. Last year, North Dakota became the first state to allow police to equip drones with “less than lethal” weapons. The North Dakota Peace Officers Association drew a line at weaponizing the drones and insisted on only pepper spray, Tasers, sound cannons and rubber bullets.