By: Steven Wittenberg
Introduction
Drone technology is here to stay. They are the Obama administration’s instrument of choice for high-level officials to execute “lawful . . . lethal operations in a foreign country” aimed at enemy combatants (who can be U.S. citizens) who happen to be an “operational leader.”[1][2] To qualify, there must be an “imminent threat,” capture must not practical, and the slaying must be consistent with the laws of war. “Imminent” is a self-defense term, which demands that the official must “know, in a detailed manner, who poses such a threat, in what circumstances, and how and when such persons can be targeted.”[3] At the intersection of intelligence gathering and the decision to strike are the so-called “kill lists,”[4] which are maintained to ensure the targets satisfy all the conditions of a lawful targeted killing.
As a vestige of President Obama’s grand strategy to forge a “leaner” military to sustain prolonged military engagements in 2012,[5] the Pentagon planned a “sharp increase” in drone flights in August 2015.[6] Drones are both harshly criticized and reluctantly praised as the centerpiece weapon against enemy combatants. [7] The question is whether this new technology can be harnessed (or abused) within the fifty states and how.
Today, the proliferation of drones in civilian society is palpable. One need not look further than the website myfirstdrone.com, which is a one-stop shop for all things drone. Moreover, the headline, “Man Detained Outside White House for Trying to Fly Drone” sums up the current drone climate.[8] The Consumer Technology Association estimated 400,000 drones were sold over the past holiday season.[9] Legislatures have not been inactive. In Illinois, drones may not be used to frustrate another person’s hunt: either “wildlife or aquatic life.”[10] Indeed, Illinois formed a drone task force because “[i]t is clear that increased drone use creates emerging conflicts and challenges to providing guidance into the safe operation of drones, while not infringing upon the constitutional rights of others.”[11]
The typical drone is an “unmanned aircraft” as a part of an “unmanned aircraft system.” The system contains the required “support equipment, control station, data links, telemetry, communications and navigation equipment necessary to operate the unmanned aircraft.” In December 2015, the Federal Aviation Administration (FAA) released a “Fact Sheet” advising state and local authorities on drone regulation.[12] According to the Illinois Freedom from Drone Surveillance Act, a “drone” is “any aerial vehicle that does not carry a human operator.”[13]
There are two ways for people to receive federal authorization to use drones for non-governmental use. You can get a Section 333 Exemption for “commercial operations in low-risk, controlled environments.”[14] Alternatively, you might try getting a Special Airworthiness Certificate (SAC), which requires you to describe the drone, its intended use and its quality assurance procedures.[15] Currently, “carrying persons or property for compensation or hire is prohibited.”[16] Lastly, if you can get federal authorization, you must also comply with state law.
The FAA fact sheet advises cooperation with federal authorities on areas of regulation regarding “navigable airspace” and mandatory training. It also noted the capacities where state governments would have exclusive control under their police power not delegated to Congress secured by the 10th Amendment to the U.S. Constitution.[17] The areas traditionally under state police power include land use controls, zoning policy, privacy, trespass, and law enforcement operations.[18]
Law Enforcement Drone Application
U.S. states possess the inherent power as once-sovereigns to implement a law enforcement drone program under their police power. Drones may work in concert with the state’s local law enforcement officers. In fact, today, drones are used for surveillance and have reportedly added great value in search-and-rescue operations.[19] They improve “situational awareness” through their cameras and sensors for border control situations.[20] In addition to working in concert with law enforcement, drones might also be used to work independently through a leading role. Independent drones would be a primary agent of the state;[21] however, they would still require an unmanned aircraft system to support their operations, but their objectives could be crime prevention.
Crime prevention would be premised on a similar self-defense justification the Obama administration marshals for its targeted killing program. Under Article 51 of the United Nations Charter, the U.S. holds a self-defense privilege to use lethal force against individuals planning attacks within and without warzones.[22] For individuals, “self-defense is a primary law of nature.”[23] Just as a police officer may use necessary and reasonable force prevent harm to himself or others when he reasonable believes the response was required to avert the harm,[24] so too could a drone defend others (technology permitting).
State law enforcement application of drones could include patrolling neighborhoods with high crime rates. In practice, drones could surveil their vicinity with their sensors and detect firearm discharges and cross-locate origin points, expediting police response times. However, this model is merely responsive and not preventive. As the technology develops, there may be a way for special types of drones, as primary actors of the state, to incapacitate would-be violent criminals by disabling the actor under the self-defense and defense of others justifications. But this application of drones sounds of science fiction and invasion of privacy. Therefore, incapacitation by drone may be applied, if applied at all, only in limited situations.
The real benefit of drones as a policing agent, consequently, would be in their deterrent effect against criminal behavior as mentioned above. A study in 2005 found a fifteen percent reduction in crime when extra officers were on duty during “high terror alert days.”[25] University of Chicago Professor of Economics Steven Levitt estimates that with every ten percent increase in the amount of police, violent crime is reduced by four percent and property crime is reduced by five percent.[26]
The average annual salary of a police officer is $52,810.[27] The average police drone would cost between $20,000 to $30,000.[28] If police drones can quickly summon their human counterparts and apprehend criminals, then crime could feasibly go down with greater economic efficiency than putting more cops on the street. Indeed, the greatest criminal deterrent is certainty about being caught.[29] If criminals acquire the knowledge they will likely be caught through the presence of drones, then crime should go down.
Police State Considerations
The greatest concern about employing drones under the auspices of a state’s police power is the fear of an authoritarian police state. There may be worries about the potential invasion of privacy of which drones are capable.[30] It is quite plausible for state and local governments to use drones to invade privacy with the backdrop of the National Security Agency’s ever-monitoring presence.[31]
It also might be tempting with the advent of drones to use the technology to assassinate criminal ringleaders and dangerous felons within the United States, especially those who are wanted dead or alive, similar to federal government’s use of drones abroad. Critics would rally behind the potential violation of the target’s right to a trial by jury under the 6th Amendment of the U.S. Constitution and the 14th Amendment’s guarantee to not be “deprived of life, liberty or property, without due process of law” by a state.[32] However, at the same time, it could be argued the slaying was necessary for the defense of others if the target was deemed an “imminent” threat, which would echo the Obama administration’s authorization to kill U.S. citizen Anward al-Awlaki.[33]
The Current Drone Landscape
The Illinois state legislature has regulated drone use in law enforcement to assuage privacy concerns. The Act provides:
(a) Except as provided in Section 15, a law enforcement agency may not acquire information from or direct the acquisition of information through the use of a drone owned by a private third party. In the event that law enforcement acquires information from or directs the acquisition of information through the use of a privately owned drone under Section 15 of this Act, any information so acquired is subject to Sections 20 and 25 of this Act.
(b) Nothing in this Act prohibits private third parties from voluntarily submitting information acquired by a privately owned drone to law enforcement. In the event that law enforcement acquires information from the voluntary submission of that information, whether under a request or on a private drone owner’s initiative, the information is subject to Sections 20 and 25 of this Act.[34]
Part (b) may indicate that neighborhood watch groups may help police with their own drones with surveillance footage. However, the above act has plenty of exceptions for extreme circumstances. For example, law enforcement agencies may use drones to counter high-risk terrorist threats, or where “a law enforcement agency possesses reasonable suspicion that, under particular circumstances, swift action is needed to prevent imminent harm . . . .”[35]
The use of drones are undeniably valid exercises of state police power within the law enforcement sphere. There are valid fears of constant overhead surveillance, but there certainly is a potential to use drones for criminal deterrence in high crime areas. Moreover, drone manufacturers can partner with state governments to experiment with the immeasurable applications of drone technology in local law enforcement.
[1] David Rohde, The Obama Doctrine, Foreign Policy (Feb. 27, 2012), http://foreignpolicy.com/2012/02/27/the-obama-doctrine/.
[2] NBC News, Department of Justice White Paper (Feb. 4, 2013), http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf.
[3] Amos Guiora & Laurie Blank, Targeted Killing’s ‘Flexibility’ Doctrine That Enables US To Flout The Law Of War, The Guardian (Aug. 10, 2012), http://www.theguardian.com/commentisfree/2012/aug/10/targeted-killing-flexibility-doctrine-flout-law-war.
[4] Dana Priest, Inside The CIA’s “Kill List”, PBS Frontline (Sept. 6, 2011), http://www.pbs.org/wgbh/frontline/article/inside-the-cias-kill-list/.
[5] Joseph Farag, The Role of Predator Drones in Obama’s New “Lean” Military, Muftah (Jan. 6, 2012), http://muftah.org/the-role-of-predator-drones-in-obamas-new-lean-military/#.Vr-GafkrKUk.
[6] Reuters, Pentagon Eyes Sharp Increase In Drone Flights By 2019: Official, (Aug. 17, 2015), http://www.reuters.com/article/us-usa-security-drones-idUSKCN0QM1FR20150817.
[7] Accord Andrew Blake, Obama-led Drone Strikes Kill Innocents 90% Of The Time: Report, Washington Times (Oct. 15, 2015), http://www.washingtontimes.com/news/2015/oct/15/90-of-people-killed-by-us-drone-strikes-in-afghani/ (citing a leaked intelligence report suggesting drone strikes in Afghanistan killed unintentional bystanders ninety percent of the time); see also Ed Pilkington & Ewen MacAskill, Obama’s Drone War a ‘Recruitment Tool’ For Isis, Say US Air Force Whistleblowers, The Guardian (Nov. 18, 2015), http://www.theguardian.com/world/2015/nov/18/obama-drone-war-isis-recruitment-tool-air-force-whistleblowers (calling drones a “recruitment tool” for ISIS); with Daniel Byman, Why Drones Work, Foreign Affairs (Jul/Aug. 2013), https://www.foreignaffairs.com/articles/somalia/2013-06-11/why-drones-work (“In the end, drone strikes remain a necessary instrument of counterterrorism. The United States simply cannot tolerate terrorist safe havens in remote parts of Pakistan and elsewhere, and drones offer a comparatively low-risk way of targeting these areas while minimizing collateral damage.”).
[8] Kristen Holmes, Man Detained Outside White House For Trying To Fly Drone, CNN (May 15, 2015), http://www.cnn.com/2015/05/14/politics/white-house-drone-arrest/.
[9] Ronald J. Hedges & Julie Lewis, Drones, the Public, and You, Bloomberg BNA (Feb. 15, 2016), https://www.bloomberglaw.com/document/XE9BIFIO000000.
[10] 720 Ill. Comp. Stat. Ann. 5/48-3(b)(10) (West 2013).
[11] 20 Ill. Comp. Stat. Ann. 5065/5 (West 2015).
[12] Federal Aviation Administration Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact sheet, (Dec. 17, 2015) [hereinafter FAA, Regulation of UAS], https://www.faa.gov/uas/regulations_policies/media/UAS_Fact_Sheet_Final.pdf.
[13] 725 Ill. Comp. Stat. Ann. 167/5 (West 2014).
[14] Federal Aviation Administration, Civil Operations (Non-Governmental) (last visited Apr. 9, 2016), https://www.faa.gov/uas/civil_operations/.
[15] Id.
[16] Id.
[17] See generally Mayor of New York v. Miln, 36 U.S. 102, 103 (1837) (“All those powers which relate to merely municipal legislation, or which may more properly be called internal police, are not surrendered or restrained; and consequently, in relation to these the authority of a state is complete, unqualified and exclusive.”).
[18] See FAA, Regulation of UAS, supra note 10.
[19] American Civil Liberties Union, Domestic Drones, https://www.aclu.org/issues/privacy-technology/surveillance-technologies/domestic-drones (last visited Feb. 13, 2016).
[20] PoliceOne.com, 5 UAV Technologies For Police, (Apr. 10, 2014), https://www.policeone.com/police-products/investigation/video-surveillance/articles/7067279-5-UAV-technologies-for-police/.
[21] A primary agent would be the means through which the state directly interacts with people. A secondary agent, in contrast, would be an indirect aid to the primary agent, but with only, therefore, indirect effects on people.
[22] Jonathan Masters, Targeted Killings, Council on Foreign Relations (May 23, 2013), http://www.cfr.org/counterterrorism/targeted-killings/p9627.
[23] 33 Am. Jur. Proof of Facts 2d 211 (Originally published in 1983).
[24] Michigan Non-Standard Jury Instr. Criminal § 13:10.
[25] Jill Elish, More Cops On Beat Reduce Crime On Street, FSU Study Shows, Florida State University News, https://www.fsu.edu/news/2005/06/24/more.cops/ (last accessed Feb. 13, 2016).
[26] Jens Ludwig, More COPS, Brookings Institution (Mar. 2007), http://www.brookings.edu/research/papers/2007/03/crime-ludwig.
[27] DiscoverPolicing.org, Financial Stability and Benefits, http://discoverpolicing.org/why_policing/?fa=financial_stability (last accessed Feb. 13, 2016).
[28] Orange County Register, Police Drones Could Be Coming To A Sky Near You, Creators.com, http://www.creators.com/opinion/daily-editorials/police-drones-could-be-coming-to-a-sky-near-you.html (last accessed Feb. 13, 2016).
[29] Office of Justice Programs, Five Things about Deterrence, National Institute of Justice (Sept. 12, 2014), http://nij.gov/five-things/pages/deterrence.aspx.
[30] See Laura Sydell, Now You Can Sign Up To Keep Drones Away From Your Property, NPR (Feb. 24, 2015), http://www.npr.org/sections/alltechconsidered/2015/02/23/388503640/now-you-can-sign-up-to-keep-drones-away-from-your-property.
[31] See Krishnadev Calamur, 5 Things To Know About The NSA’s Surveillance Activities, NPR (Oct. 23, 2013), http://www.npr.org/sections/parallels/2013/10/23/240239062/five-things-to-know-about-the-nsas-surveillance-activities.
[32] U.S. Const. amend. VI; U.S. Const. amend. XIV.
[33] Charlie Savage, Court Releases Large Parts of Memo Approving Killing of American in Yemen, New York Times (Jun. 23, 2014), http://www.nytimes.com/2014/06/24/us/justice-department-found-it-lawful-to-target-anwar-al-awlaki.html.
[34] 725 Ill. Comp. Stat. Ann. 167/40 (West 2015) (emphasis added).
[35] 725 Ill. Comp. Stat. Ann. 167/15(1), (3) (West 2015).