To drone or not to drone? Government spying comes to the skies near you

By Marjorie R. Esman
Guest Columnist

It was the top story on most local news stations a few weeks ago when the Jefferson Parish Sheriff’s Office used a drone to survey and gather information at a crime scene in Marrero. Retired FBI agent James Bernazzani, who supervised the use of the drone, says the FBI has been using them for quite some time, but this is the first time he’s seen a local police agency utilize the device.

Drones are the latest in high-tech surveillance devices. The flying, unmanned devices of varying sizes, which proponents say can take the place of 20 surveillance units, fly overhead and survey large swaths of land and other areas, videotape and record everything they survey, and return that information to whoever is in control of the drone. Because they are inexpensive, the use of drones is growing in popularity, especially by the military, the FBI and other federal government enforcement agencies. U.S. Customs and Bord­er Protection have flown hundreds of drone missions on behalf of other agencies, including both state and local agencies. Indeed, local law enforcement agencies have begun to experiment with the use of the drones. However, the Federal Aviation Administration hasn’t released guidelines on their use, nor are there rules for how the information they collect is to be handled. The FAA has determined to establish a set of drone regulations by September 2015, but they may not make that deadline. Until then, the technology is unregulated and the public remains unprotected.

While drones may be effective in surveying, gathering information at a crime scene or even in fighting crime, they are by definition intrusive and can invade people’s privacy. They can create a permanent video record of someone’s location and activities – even if that person wasn’t a suspect in any criminal behavior. Without clear guidelines about how those images will be used and how long they will be kept, we risk creating a permanent database of everyone’s activities, which the government could use for any purpose. This amounts to a warrantless search, and poses serious due process concerns.

This past legislative session, our state lawmakers considered the question of drones’ invasion of privacy. Drones now may not fly over chemical plants in Louisiana, but there are no restrictions on their use for other purposes, in­cluding engaging in general surveillance. In fact, the Jef­ferson Parish Sheriff’s Office has ack­nowledged that they have no policies or protocols governing the use of drones, including the one that they launc­hed last month.

There may be a legitimate use for a small, inexpensive device that can assist with criminal investigations. If such a device can collect information not available by other means, there must be a way to safely incorporate it into the tools that law enforcement agencies can use. But there must be a balance between the benefits and the risks of invasion of privacy.

This article originally published in the August 18, 2014 print edition of The Louisiana Weekly newspaper.