Legal and Regulatory Considerations – Center for Unmanned Aircraft Systems in Public Safety

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sUAS use by police is in the national and legal spotlight. There are important legal considerations related to their use, legislative protections at the state level, and constitutional protections in place addressing many of the onboard technologies systems often found on sUAS. Before law enforcement leaders begin to use any new technology, it is important to consider whether the technology will raise legal and constitutional issues. This is particularly key for addressing the use of UAS technology within a community policing framework.

Because the application of sUAS technology for public safety use is emerging, the legal and regulatory environment is continually changing. Always be sure to consult the most current federal, state, and local laws applicable to sUAS. Law enforcement agencies are strongly advised to consult with their own City Attorney or District Attorney on legal and constitutional issues surrounding the use of sUAS before launching their program.

As with numerous other technologies, the use of UAS is evolving much quicker than the law. While the legal issues surrounding UAS use are rapidly evolving as the courts consider them, significant guidance can be found in existing constitutional law and law addressing other technologies.

The Fourth Amendment and the Right to Privacy

The Fourth Amendment prohibits unreasonable search and seizure. As such, people must have a reasonable expectation of privacy (RXP) in certain spaces such as in their homes and in public spaces configured to provide privacy.

The RXP Test: When interpreting the Fourth Amendment right to privacy, courts consider whether citizens have a reasonable expectation of privacy (RXP) in the situation. People on city streets do not have a reasonable expectation of privacy, but they so in their homes. When considering the use of UAS in open spaces, the RXP test asks you to consider whether people have a reasonable expectation of privacy in the space.

Constitutional Protections and the RXP Test.

Listening device & Katz v. United States (1967) The court ruled that attaching a listening device to a public telephone booth violates the Fourth Amendment.

The court ruled that attaching a listening device to a public telephone booth violates the Fourth Amendment.

GPS & United States v. Knotts (1983) The court ruled that attaching a tracking beeper did not constitute a search, but turning it on did.

The court ruled that attaching a tracking beeper did not constitute a search, but turning it on did.

Photographs & California v. Ciraolo (1986) The court ruled there was not a Fourth Amendment violation when officers took pictures of a private residence at 1000 feet, however, this ruling needs to be weighed in accordance with the RXP test.

The court ruled there was not a Fourth Amendment violation when officers took pictures of a private residence at 1000 feet, however, this ruling needs to be weighed in accordance with the RXP test.

Searches & N.Y. v. Class (1986) Because the exterior of an automobile is for all intents and purposes in the public eye, it may be visually examined by police without a warrant.

Because the exterior of an automobile is for all intents and purposes in the public eye, it may be visually examined by police without a warrant.

Video surveillance & United States v. Cuevas-Sanchez (1987) Video surveillance of private property from a pole camera, when obtained without a warrant, constitutes a search in violation of the Fourth Amendment.

Video surveillance of private property from a pole camera, when obtained without a warrant, constitutes a search in violation of the Fourth Amendment.

Photographs & Florida v. Riley (1989) Court ruled that photographs of a private residence taken at 400 feet did not constitute a search, however this ruling needs to be weighed in accordance with the RXP test.

Court ruled that photographs of a private residence taken at 400 feet did not constitute a search, however this ruling needs to be weighed in accordance with the RXP test.

Thermal imaging & Kyllo v. United States (2001) Warrantless use of a thermal imaging device on a private residence constitutes a search that violates a person’s right to privacy.

Warrantless use of a thermal imaging device on a private residence constitutes a search that violates a person’s right to privacy.

GPS & United States v. Jones (2012) The court ruled that attaching a GPS device to a car without a warrant constitutes an unlawful search and also trespass into a constitutionally protected area.

The court ruled that attaching a GPS device to a car without a warrant constitutes an unlawful search and also trespass into a constitutionally protected area.

Data interception & Joffe v. Google (2013) The use of sUAS to intercept and collect WiFi data without a warrant is considered wiretapping.

The use of sUAS to intercept and collect WiFi data without a warrant is considered wiretapping.

In 2013, states began introducing UAS legislation in a rapid fire fashion. This reaction reflected a public fear in the use of sUAS by law enforcement to violate privacy. Much of the legislation deals with defining drones and limiting law enforcement’s ability to gather information or evidence with them.

States that have currently enacted UAS legislation applicable to police include:

The regulatory differences between civil and public aircraft are significant. Law enforcement use of sUAS is regulated by the Federal Aviation Administration under Part 107 –Small Unmanned Aircraft Systems.

The requirements of Part 107 include the following:

Operational limitations Applies to sUAS that weigh less than 55 lbs. (25kg) Aircraft must remain within visual line of sight of the pilot May not be operated over any person not directly participating in the operation Is restricted to daylight operations Does not require the use of a visual observer Can fly at a maximum altitude of 400 feet above ground level (AGL) Operations within Class G (uncontrolled) airspace are authorized without permission from air traffic control

Applies to sUAS that weigh less than 55 lbs. (25kg)

Aircraft must remain within visual line of sight of the pilot

May not be operated over any person not directly participating in the operation

Is restricted to daylight operations

Does not require the use of a visual observer

Can fly at a maximum altitude of 400 feet above ground level (AGL)

Operations within Class G (uncontrolled) airspace are authorized without permission from air traffic control

Remote Pilot in Command (RPIC) Certification and Responsibilities Establishes an RPIC airman certificate RPIC is responsible for ensuring the condition of the system is safe for operation prior to flight

Establishes an RPIC airman certificate

RPIC is responsible for ensuring the condition of the system is safe for operation prior to flight

Aircraft requirements FAA airworthiness certification is not required

FAA airworthiness certification is not required

Federal Aviation Administration resource site for safe flying, including sUAS.

All federal regulations related to UAS.

States with UAS Legislation Applicable to Police.

Overview of UAS Related State Legislation (2014).

Constitutional Guidance for UAS.

Police Use of UAS under U.S. Constitutional Case Law.

This website is supported by cooperative agreement 2013-CK-WX-K002 awarded by the Office of Community Oriented Policing Services, U.S. Department of Justice. The opinions contained herein are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice. References to specific agencies, companies, products, or services should not be considered an endorsement by the author(s) or the U.S. Department of Justice. Rather, the references are illustrations to supplement discussion of the issues.

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