Unmanned Aircraft Systems (UAS), commonly referred to as drones by the media and public at large, are becoming more common in the skies above the U.S. and around the world. While initial awareness of this technology concentrated mostly on U.S. Department of Defense (DoD) operations in various war theaters, public concerns for the use of UAS has steadily increased over the past decade. Today, the public’s concerns have sharply focused on domestic UAS operations by the government, including federal, state and local law enforcement agencies around the country.
At the same time, the agency responsible for ensuring the safety of U.S. air transportation, the Federal Aviation Administration (FAA), has become increasingly concerned about the rapid proliferation of small UAS throughout most communities. There is evidence of a significant increase in civilian use of small, inexpensive UAS by people and businesses that traditionally did not comply with FAA requirements.
The FAA has recently published new regulations permitting the operation of civil small UAS (sUAS). The new regulations do not require an airworthiness certification for the UAS but do require the operator to have a remote pilot certificate issued by the FAA. Also, UAS technologies need to be registered with the FAA and display the registration number (N-number) on the aircraft. Despite these new rules, there is an escalating threat of unauthorized or “illegal” UAS flights that continue to pique the FAA and federal, state and local law enforcement agencies’ attention and concerns for public safety, in the air as well as on the ground. This rapid proliferation of small UAS technologies has even escalated concerns about our national security. This white paper is intended to offer high-level guidance to law enforcement agencies on how to assess UAS operations within their jurisdictions and suggest actions to interdict and mitigate unauthorized, illegal or risky operations.
The typical consumer UAS is operated by a hand-held digital radio control box, but technology is advancing and today, many of these technologies can be operated with a simple cellphone. Most of these technologies have effective ranges out to a few miles.
Clearly, RC flying has evolved well beyond the mere enjoyment of a hobby for recreational flying. This increasing consumer market for small UAS presents a number of public safety and national security concerns, some of which are presented below Risk of Physical Injury. A UAS can launch and land in a confined area, such as a parking lot, at an outdoor concert or in public parks. In August 2013, a civilian operated UAS crashed into the spectator stands at Virginia Motor-sports Park, injuring four to five spectators.’ In December 2014, TGI Friday launched a promotion called “Mobile Mistletoe” to fly mistletoe over couples at the restaurant. The UAS lost control and clipped a photographer in the nose, cutting the tip of her nose and chin.
- Transport of Illegal Substances. UAS have the ability to carry objects, typically cameras. However, with the ability to carry payloads, consumer purchased UAS can carry packages and have the ability to drop them remotely. In January 2015, a UAS carrying 3 pounds of methamphetamine crashed on the U.S.-Mexico Border.
- Clandestine Photography (e.g., paparazzi, or others). The principal concern for privacy stems from this element. Even though LEAs are being accused of potential Fourth Amendment abuses/violations, the real threat to privacy exists with the private citizen snapping pictures and posting them onto social media sites or using them for some other purpose.
- Photograph of Sensitive Infrastructure (national security concerns). UAS provide civilians with the ability to capture high-resolution aerial photographs without the use of expensive or relatively restricted manned aircraft. In France, in November 2014, three individuals were arrested after using a UAS to photograph a nuclear plant. In Connecticut, in May 2013, a UAS operated by a Chinese national flew over a power plant taking photographs and then crashed the UAS.5 The most alarming use of a UAS over sensitive infrastructure was the January 2015 report of a UAS found on the grounds of the White House.
- Counter-Surveillance. While we have not seen any publicly available reports, the law enforcement community is becoming increasingly aware that UAS can be used for counter-surveillance. For example, a UAS can detect law enforcement in the vicinity of an illegal transaction, such as monitoring the access points for known drug trafficking There was even a rumor reported as a small UAS conducting surveillance against a police department in California.
- Terrorist Activities and Threats to National Security. It is not unreasonable to expect that terrorists could plan a serious attack using one of these small UAS technologies to carry a chemical or biological agent such as saran or anthrax or other harmful agents, and deploy them remote They might even carry a small explosive device.
These are only a few examples that LEAs may confront in the near future as this technology and its availability increase throughout the country. Federal, state and local law enforcement agencies must begin to consider; develop and implement appropriate strategies to address these growing concerns for public safety. State legislatures are already focusing attention on these systems with reference to privacy and security concerns.
Law Enforcement’s Enforcement Capabilities
The following is intended to provide an overview of possible state laws that may assist law enforcement in addressing unauthorized or unlawful UAS operations. As a general matter, a number of states have already passed laws directly related to UAS operations. Many of these statutes may even impact or influence LEAs’ decisions to acquire this technology as an added tool for public safety. Agencies are encouraged research and discover any state laws or local ordinances that may directly address the use of UAS. Though the language of the laws varies, they clearly indicate a concern about the use of UAS and how they will affect the public, with privacy being chief among those concerns. A number of these laws focus on government actors instead of civilians. Therefore, it is important to determine who the law applies to when reviewing a specific UAS law within a jurisdiction.
While the public expresses concerns about LEAs deploying UAS technology as a means to “spy” on them, violating their Fourth Amendment rights, the real and present danger exists not from the LEAs but from fellow neighbors and citizens. Some people may be inclined to capture video or still photos of others using a UAS, essentially peeping into the privacy of another in order to capture images or video of others in an unlawful way.
In addition to specific UAS legislation, law enforcement may use a number of existing laws to help address illegal orimproper UAS operations. Still, the prosecutor will need to be convinced that the time and effort to prosecute a UAS case under one of these laws is necessary and worthy of exploit.
- Disorderly Conduct Laws. In certain states, the act of being a “peeping Tom” may be punishable as an example of disorderly conduct. Across the country, disorderly conduct statutes and local ordinances prohibiting disorderly conduct In general, disorderly conduct is punished as a misdemeanor and constitutes words or acts which tend to disturb the peace or endanger the morals, safety or health of the community. Whether the operation of a UAS can be prosecuted as disorderly conduct depends heavily on the particular circumstances of the operation and the disorderly conduct statute and/or ordinance in the particular jurisdiction.
- Peeping Tom Laws. Other state laws are more specifically directed at peeping Toms. Nearly identical Georgia and Louisiana statutes actually define the term peeping Tom and prohibit the act of peeping through windows or doors, or similar places, on or about the premises of another for the purpose of spying upon or invading the privacy of the persons spied upon and the doing of any other acts of a similar nature which invade the privacy of such persons.
- Nuisance/Noise Laws. UAS operators may also run afoul of state statutes and common law doctrine prohibiting public and private nuisances. Like the peeping Tom statutes, only unreasonable activities of UAS pilots will be considered to be nuisances to the public at large or to a private person. A public nuisance is an unreasonable interference with a right common to the general public. An action may interfere unreasonably with a public right if it interferes significantly with public health, safety or convenience. Both public and private parties can seek to enjoin a party from continuing such a public nuisance. In certain circumstances, private parties may even recover damages suffered by a public nuisance.
- Identity Theft and Invasion of Privacy. Traditionally, fundamental privacy rights have been recognized through tort law. The various privacy tort concepts (including intrusion upon seclusion, appropriation of identity or likeness, public disclosure of private facts, and portrayal in a false light) are incorporated into case law and/or statutes in most states around the country. Additionally, some criminal statutes now punish these tortfeasors for their acts invading a privacy right. Many of these criminal statutes substantially overlap with or are embodied in the peeping Tom statutes described above.12 Other statutes are more focused on the appropriation of a nonconsenting person’s identity or likeness for the perpetrator’s own gain.
- Reckless Endangerment. Any criminal prosecution for reckless endangerment of a UAS pilot would hinge on the presence or absence of a UAS pilot’s unreasonableness. In this instance, the standard of unreasonableness is heightened to a level of gross negligence or criminal recklessness. Reckless endangerment laws prohibit a person from recklessly engaging in conduct that creates a substantial risk of death or serious physical injury to another person.15 In Maryland, for example, reckless endangerment convictions will only stand if the defendant’s conduct, viewed objectively, was so reckless that it constituted a gross departure from the standard of conduct of a law-abiding person.
Law Enforcement’s Response Options
When it comes to UAS operations, federal, state and local law enforcement agencies already have many techniques and protocols in their enforcement tool box to correctly confront and manage suspected unauthorized or illegal UAS operations.
One of the more important issues for LEAs interdicting unauthorized or illegal UAS operations is LEAs’ familiarity with national airspace restrictions relevant to their enforcement area of responsibility. The FAA frequently publishes flight restrictions to protect various sensitive operations, special security events .g., select law enforcement activity, space flight operations, major sporting events), and presidential movements. All flight operations conducted within these flight restriction areas are typically prohibited and therefore any UAS operation conducted within those restricted areas, without a specific authorization, would be a criminal activity. The most up-to-date list of Temporary Flight Restrictions (TFRs) is available at http://tfr.faa.gov/tfr2/list.html.
- Identification and Interviews of Witnesses. The identification of witnesses and the conduct of initial interviews in a timely manner are critical to supporting potential enforcement actions by the FAA. Gathering as much information (or evidence) concerning the event ensures that FAA administrative proceedings are sufficiently supported. FAA inspectors frequently return to re-interview witnesses so it is very important to be able to locate and conduct independent interviews of these witnesses.
- Identification of the UAS Operator. Today, very few of the small UAS technologies have any identifying markings, so it is important to locate and positively identify the UAS operator and anyone else that may be supporting the Interestingly, many operators advertise their services openly on the internet or social media. Many FAA actions have been initiated from YouTube videos posted by the offender. It is also important to discover and validate (if possible) the purpose of the UA flight (e.g., commercial venture, to complete a business contract, or to sell pictures/videos etc.)
- Viewing and Recording Location of the Event. LEOs taking photos or videos of the scene in close proximity to the event help to distinguish the daylight and prevailing weather conditions during the flight. The use of any identifying landmarks will help to judge the position of the UA, its approximate altitude, and distance from people and
- Identifying Sensitive Locations, Events or Activities. There are several sensitive (national security implications) security-driven airspace restrictions around the country (e.g., nuclear power plants, etc.). From time to time, there are also security-sensitive activities ongoing that the FAA believes must be protected from overflight by aircraft (e.g., a political event, a major sporting event like the Super Bowl or NASCAR, or an ongoing law enforcement or natural disaster event). In order to protect those locations or events, the FAA will establish Temporary Flight Restrictions (TFRs), Prohibited Areas, and other airspace security measures (e.g., the Washington, DC Flight Restricted Zone (DC FRZ)), in which flight of aircraft is prohibited. If there is any question as to whether a TRF is been established in a given location, contact the nearest air traffic facility or visit http://tfr.faa.gov/tfr2/list.html
- FAA Notification. Immediate notification of an incident, accident or other suspected violation to one of the FAA Regional Operation Centers (ROC) located around the country is valuable to the timely initiation of the FAA’s These centers are manned 24 hours a day, seven days a week with personnel who are trained in how to contact appropriate duty personnel during nonbusiness hours when there has been an incident, accident or other matter that requires timely response by FAA employees. For ROC contact information, see https://www.faa.gov/ uas/resources/law_enforcement/media/LEO_guidance_ card.pdf.
- Evidence Collection. Identifying and preserving any public or private security systems that may provide photographic or other visual evidence of UAS operations, including video or still picture security systems, can provide essential evidence to the FAA.
If an agency or individual would like to discuss further planning regarding how to confront UAS situations, please contact us at firstname.lastname@example.org or call us @ 866-618-2267.
Hope you enjoyed this report. Feel free to request an FAA 16X20 incident reporting poster at no charge that you can share with your department.
Disclaimer: The orginal report was published by the National Institute of Justice (U.S.)