Students craft model drone policy
A patchwork of state laws and absence of clear federal direction regarding Unmanned Aerial Vehicles (UAV) has left policy gaps that two master’s degree students at the Center for Homeland Defense and Security master’s are trying to fill.
As with any disruptive technology, the popular ascent of unmanned aerial vehicles, commonly referred to as drones or UAVs, is posing both potential for public safety agencies coupled with policy concerns and especially worries about constitutional protections under the fourth amendment.
Captain Gregg Favre of the St. Louis Fire Department and Monica Manzella, Assistant City Attorney in New Orleans, wrote their paper, “Through the Looking Glass: Public Safety Agencies Drone Policy and the Fourth Amendment,” for the Technology for Homeland Security course.
“A lot of agencies are not using drones because of constitutional concerns,” Manzella said. “My interest was what those privacy concerns were and why agencies are not using drones.”
The issue was relevant to both students’ jurisdictions, making the assessment a real-world research project that is a characteristic of a CHDS education.
“St. Louis Fire is one of many agencies exploring this technology and crafting quality policy around its use requires an understanding of legal precedent and public opinion,” Favre said. “Given the complexity of the national conversation around drone usage, it can be difficult for public safety agencies to wrap their hands around what their organization needs with regards to policy and equipment.”
1) The paper traces case law from the solidifying of privacy rights under the Fourth Amendment in 1967 to subsequent rulings on aerial surveillance under that concept, as well as more recent interpretations related to the rise of technology.
“It’s interesting how you have all this case law that is all over the place, but looking at the synopsis in our paper, you can reasonably predict where the issue is going,” Manzella said.
Beyond Fourth Amendment issues, the paper notes the public’s perception and qualms about unmanned vehicles flying overhead. Generally speaking, more than 60 percent of respondents to a Reuters/Ipsos poll supported using drones to solve or deter crime. That level of support is more varied when the question is more specific: 83 percent of respondents in a Monmouth University poll supported UAV use for search and rescue missions, but 21 percent for basic traffic enforcement.
“Public opinion on the use of this technology has also been shaped by the actions of private actor,” Favre noted. “Unlike a traditional law enforcement helicopter, drones are readily available to a private citizen, and how they use that UAV can affect the public’s general perception. Many of the policy recommendations that we suggest in this paper are designed to lessen concerns sounding an individual’s privacy, showcasing the safeguards and checks that a public safety agency would have place.”
The model policy set forth by Favre and Manzella establishes a framework requiring warrants for using UAVs to glean information, except for certain types of emergencies, as well as rules for collecting, storing, retaining and sharing that information. The model further sets punitive measures for violations and calls for third-party audits to ensure agencies are abiding by their policies.
2) In crafting their document, the pair found they were able to complement one another’s professional background, something CHDS strives to accomplish in its student composition. In this case, Favre was able to offer insight into front-line first responders needs while Manzella could synthesize the legal challenges.
“There were times Monica could tell me what was unconstitutional and there were time we talked about policy and she would make a suggestion I knew would not be practical in a day-to-day setting,” Favre said. “I think we found nice middle ground, came to a conclusion and melded the perspectives into something solid. There was a lot of benefit for me to work with someone who has a dissimilar background and experience. It broadened my understanding of this issue and how I will address future problems.”
Manzella echoed that view: “Gregg’s perspective from his background definitely broadened how I view the UAV issue. In fact, the CHDS program has broadened how I approach legal issues.”
3) Guidance from federal agencies has been scant and a scheduled September 2015 FAA policy on UAVs is expected to generally address commercial aviation issues rather than constitutional questions surrounding their use. That has left states to grapple with the problem and while many have passed legislation, laws vary as to where and how UAVs may be used.
Favre and Manzella offer a model that can be adopted by state legislatures or even local agencies that they believe will pass constitutional muster while allowing professionals in the field flexibility to operate. They are seeking to publish their paper in an academic journal with the goal of doing so prior to completing the master’s degree program.