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Gregory McNeal
Gregory McNeal

Writing the rules for domestic drone use

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Drones are smaller, cheaper, and easier to use than ever, and their cameras are more powerful than ever.

In the near future, drones may be used to find criminals, track wildlife, or find a lost hiker in a remote canyon. They could also be used to look in places where we're not used to prying eyes.

Law professor Gregory McNeal studies the legalities of drone use at Pepperdine University in California. McNeal believes local government, not the courts, should lead the way in writing the rules in the drone era.

He says our notions of privacy may differ from what the law says. McNeal told David Sommerstein the Supreme Court has upheld the right of law enforcement to look for wrongdoing from a helicopter or plane.

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So if you're tanning in your back yard, and you think that people shouldn't be looking at you, and helicopters are flying over looking down at you, and in that helicopter is someone with binoculars or a high-powered camera taking photos of you, you have no protected privacy right as a constitutional matter against that. Whether it's the paparazzi, whether it's the average guy who decided to go for a flight in a helicopter or a Cessna, or whether it's law enforcement.

But let's say that maybe we don't like that state of the world. Maybe the ground we might want to chart there is that law enforcement can't look onto private property, using an unmanned system, without probable cause.

Are there efforts to do that in Congress?

That's exactly the effort of the privacy lobby. The problem with that view is that every day, police officers get in vehicles and drive around and look at things without any suspicion or probable cause.

They drive their vehicle, they look at you as they drive by, sometimes they wave, sometimes they just give you that look and you worry you're going to get a speeding ticket, and so to say that unmanned systems could only be used when law enforcement has reasonable suspicion to believe that someone is engaged in a crime would mean that the systems would sit idle and never be used.

What kinds of bills are on the move in Congress?

There's a fascinating number of bills that are working their way through Congress…maybe 16 or 20 different bills. The most interesting dimension of it is that there's an alliance between people that we'd think of as progressive or liberals on the left, and Tea Party Republicans, not the fiscal sort of side of Tea Party Republicans, but the fear of government, limited government side [of that], so people like Rand Paul, for example, to try and prevent the use of unmanned systems, almost entirely, or creating such restrictions on their use that the systems would almost not be able to be used at all.

In my view, I think that those are overprotective, I actually think that the better proposal [is] requirements to, let's take the courts out of it, but let's have high levels of transparency on the uses of these systems.

If you're concerned about what your local police department is doing, don't turn to your congressperson in D.C., turn to your city council. So if you're the city of Watertown, NY, and you're concerned that your police department has decided to get a small unmanned system that their patrol officers will be able to launch and sort of fly over neighborhoods and whatnot, the best control mechanism is to go to your city council and say, 'if you're going to use these systems, what are the criteria by which you're using them, let's make some rules. Let's say we want an audit report published on the city's web site that says how many times the systems were used, and what the law enforcement purpose was, and we want to create a citizen review board, just like when we review zoning matters, we want a citizen review board that will also review the use of these systems.'

I think the big problem there is that a lot of people trust their governments, even their local governments, even less than they trust judges.

I think that's right, but I think that's misplaced. Trusting the people to push back and protect privacy is much better than a secret proceeding, where the police officers go behind closed doors to a judge to get a warrant and then conduct their surveillance, and only if someone's rights are violated, only then do the people get, and it's only the person who's individual right is violated, only then does that individual have a right to fight back or push back against law enforcement.

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