Rules are needed for drone use by police

For several years, a handful of lawmakers and civil liberties advocates have been talking about the need to regulate law enforcement agencies’ use of drones in Massachusetts.

Now, two state senators have filed separate bills that would, to differing degrees, limit how and when police can use unmanned, remote-controlled aircraft, commonly known as drones.

If you think this is premature, you just haven’t noticed the drones overhead. Hobbyists, photographers, real estate appraisers, surveyors and videographers have been using drones since the technology became available, and now very affordable. A drone was flying over two visiting schooners and taking photos as they cruised into Newburyport harbor two weeks ago. At least one drone was seen hovering overhead at last year’s Schooner Festival in Gloucester, most likely taking photos as well. Drones take photos above high school football games, road races, street festivals, scenic vistas and just about everything you can imagine – and many you probably can’t.

So the idea that some zealous police agencies could see drones as inexpensive, stealthy surveillance devices isn’t far fetched.

State Sen. Patrick O’Connor, a Weymouth Republican who filed Senate bill 1349 recently, said he wanted to prevent a “wild west” for law enforcement in our skies. His bill would bar government agencies from flying unmanned drones without a warrant, except in emergencies, State House News Service reported.

Sen. Michael Moore, a Democrat from Millbury, filed S 1348, which would allow government agencies to fly drones “for purposes unrelated to criminal investigation or other law enforcement purposes” as long as the information is not used in a criminal hearing or trial or for intelligence purposes, the News Service reported. One example might be using a drone to search a wooded area for a missing child or disoriented older adult. There’s no crime involved but the drone could search in remote or rugged areas more quickly than searchers could cover on the ground.

O’Connor said he was hoping to lay a “foundation” upon which lawmakers could define how this new technology is used. He’s not trying to prohibit police from using drones to fly overhead, taking photos or watching, in real-time, for criminal activity. But his bill would put drone surveillance in the category of police work requiring a search warrant from a judge. If police need probable cause to convince a judge to issue a warrant to search a house, the same standard should hold for looking at and photographing individuals, their property and their activities from above.

As we’ve seen from drone footage from Iraq, Afghanistan and elsewhere, military drones provide very high-resolution footage that can identify individuals, vehicle types and activities on the ground.

The two Senate bills both contain provisions that would prohibit agencies from equipping drones with weapons. They also would ban the use of facial-recognition technology, unless it’s for an individual named in a warrant.

Moore’s bill also restricts drones from being flown above gas storage facilities, power plants, military installations and other “critical infrastructure” facilities, the News Service reported.

Kade Crockford of the American Civil Liberties Union of Massachusetts testified recently in favor of the Senate bills, noting they would bar police from following someone in public without a warrant and from patrolling areas, again, without a warrant specifying the intent of the drone surveillance.

“Technology changes the game. It’s one thing for a law enforcement officer to actually get in his car and physically follow you around town. But because technology makes surveillance so much cheaper and easier, that’s where the new constitutional concerns come in,” Crockford said.

The technological alternative to having that police cruiser follow a suspicious car around town is to attach a GPS tracing device to a vehicle. But again, that kind of specific targeting requires a court warrant.

The possibilities for surveillance are endless with this technology, which is why it’s essential the Legislature adopt specific legal parameters for how and when law enforcement and other government agencies can use it.