Dawn of the Police Drones at Hand in Minnesota – Major Questions Unanswered
The day has come in which the skies over Hennepin County will start becoming witness to law enforcement unmanned aerial systems (UASs / Drones). The Hennepin County Sheriff’s Office (HCSO) has acquired a small quadcopter and has already deployed it despite a lack of state law regulating such operations. North Star Post, being both local and devoted to civil liberties, has completed an analysis of the legislation which would impact the use of this (and future drones) and probed the drone policy set forth by HCSO.
If we can take any cues from his Federal partners, Sheriff Stanek has several under-reported loopholes which could be taken advantage of in order to skirt the Constitutional questions at hand. Firstly, as the FBI indicated in Freedom of Information Act requests returned to North Star Post, Supreme Court rulings from decades ago can be used to justify warrantless aerial surveillance that is visual in nature.
This is the police helicopter exemption which I reported on extensively. Police helicopters overflew a man’s property at 400 feet and since they could peer into his backyard shed through a hole in the ceiling the Supreme Court determined that he did not have a reasonable expectation of privacy. That effectively meant that the warrantless aerial visual search was constitutional.
Does this mean that simply being able to exploit weaknesses (such as a wall not being fortified against infrared imaging) means the individuals inside do not wish to keep their private matters private?
You’d be hard pressed to find someone that would actually agree that you do not have an expectation of privacy behind closed doors and blindfolded windows, yet the government agreed with the hyperbolic argument in that case that only an opaque bubble over one’s property constitutes an expectation of privacy. It wasn’t meant to be a reasonable argument and given the proliferation of invasive snooping technologies since that Supreme Court ruling, it’s time to reign in this insanity.
“Drones are an order of magnitude more capable, provide so much more surveillance [for the benefit] of police, even when we’re in public spaces,” State Senator Scott Dibble (DFL).
So why not start at the local level? There is legislation at the Minnesota State Legislature that would make a key step towards that goal. Unfortunately for anyone concerned with their guaranteed freedoms, S.F. 1299 and it’s companion H.F. 2552 have stalled out because of inaction on the issue at the House level.
As of March 2016 the bill is moving through the Senate which is “poised and ready to act” to protect the civil liberties of Minnesotans according to the bill’s author, Senator Scott Dibble (DFL). Dibble explained further that this readiness remains “even if the Republican led House is not interested in regulating government drone flights.”
The legislation, which was drafted with help from the ACLU of Minnesota, includes strong regulatory measures aimed at preventing abuses of the technology in question. Law enforcement agencies would be required to get search warrants, oversight of technological acquisitions are built in, it requires clearly and narrowly defined targets of surveillance, restricts the use of facial recognition and other biometrics, requires deletion of data scooped up by drones “as soon as possible”, mandates annual reports on the use of these systems, and rules out the possibility of arming drones with weaponry.
“Every element of the bill was negotiated with law enforcement and there were compromises on some elements,” Sen. Dibble explained to me over the phone. “At this year’s hearing to return it to the floor, law enforcement came forward and articulated objections to items which were already negotiated.” This frustrated lawmakers and negotiators who have been working on many issues of law enforcement surveillance and oversight for sometime. The feeling was that the good intentioned debate and negotiations were being sabotaged in favor of maintaining the regulatory void that currently exists.
Ben Feist, Legislative Director for ACLU of Minnesota – “This technology is a game changer… the law enforcement lobby is very powerful.”
One shocking item the law enforcement side wanted to renegotiate was the prohibition of weapons added to police drones. Dibble explained “law enforcement [wanted] to take a second look at barring weapons” and they questioned whether or not the ability to fire nets at people, for example, would be ruled out by that provision.
While it is obvious that the DJI manufactured ‘Inspire 1’ quadcopter the County is fielding will not be able to handle such customizations, it’s clear that law enforcement does not want to close the door to such ideas.
North Star Post inquired about plans for future acquisitions, among other questions that they clearly had not been asked. We have yet to hear anything back despite calls and emails. Originally, we requested an in-person interview as a formality and were instructed by HCSO staff that the Command Staff does not grant such requests to media like North Star Post. This was despite the fact that we reminded them of our existence as a print newspaper which goes beyond the online exclusive format they clearly wish not to cooperate with.
In the Senate, the bill is waiting for it’s third reading and final debate on the floor. S.F. 1299 may well pass the Senate which would be largely symbolic and should signal to Minnesotans that leadership of the lower house of the Legislature is not concerned with these major constitutional, legal and ethical issues.
Wording in the UAS Policy set forth by HCSO appears to indicate plans beyond search and rescue operations.
These regulations will not become law before Hennepin County and their partners officially begin flying their drone. And, although Minnesotans were told that that wouldn’t happen until June, it has already been deployed operationally.
Sen. Dibble eloquently stated “It’s alarming the total lack of [concern for] civil liberties under the Bill of Rights that these police agencies want to close their eyes to in the use of these drones. Not just to intrude in people’s lives but to carry out their police duties in the form of bodily harm, making arrests… without regulatory oversight.”
HCSO policy seems to show a desire to expand use beyond “feel good” operations like search and rescue. Law enforcement is playing games with legislative procedures, the media and opening ‘Pandora’s Box’ before the public has a chance to realize what’s happening.
Public backlash from these developments, inconsistencies and frightening ideas may in-fact open up room for much more stringent regulations than the Sheriff and others would probably like to see. As the Senator put it, “we don’t have to look very far into the past” for evidence of that given the local history and debate over automated license plate readers (ALPRs), and police abuse of access to sensitive databases.
Ben Feist with the ACLU of Minnesota, who negotiated with law enforcement at the legislature, raised more alarming details. The ACLU is keenly focused on ensuring judicial oversight with the use of government drones in Minnesota. I spoke with Feist after a recent hearing on police body camera legislation. He told me that when they offered the concession that police could apply for a warrant AFTER a drone flight, even that was “too onerous” to accept. Feist signaled to me that the fear of the ACLU is that drones could proliferate to the point of being all too common and that there is no regulatory framework in place. This technology is “a game changer,” he said and that the “law enforcement lobby [in Minnesota] is very powerful.”
More specific issues our analysis of the County’s drone policy found include the matter of so-called incidental collection. Typically incidental collection is a phrase more commonly read in articles on the National Security Agency or in our reporting on the FBI Sky Spies. Incidental collection basically means an unrelated individual was the subject of a search simply due to their proximity to the subject of an investigation. For example, you live down the block from a suspect in a legitimate government investigation and during that probe the police deploy some type of surveillance (Stingray, aerial surveillance, etc). According to the HCSO drone policy, your incidentally collected data may be retained for up to 30 days.
During that month does HCSO plan to analyze the incidentally captured surveillance for possible additional prosecutions or investigations? The concept of mission creep is not new to Americans but most would likely be quite a bit more trusting of their local law enforcement officials than distant spooks in Washington. That does not mean the danger posed by mission creep and inappropriate use of these technologies is reduced. In fact, I would wager that having tools and policies like this in an area where police officials are familiar with – and have rooted histories and biases against certain communities or individuals – amplifies the risk of abuse.
“Data collected by the UAS not related to an active criminal investigation must be destroyed no later than 30 days from collection. Data collected by the UAS not related to an active criminal investigation must be destroyed no later than 30 days from collection.”
If drones are going to be added to the already immense arsenal of surveillance and other law enforcement gadgets then there better be laws on the books to prevent the skies over the Land O’ Lakes from turning into an Orwellian nightmare. How will we get there? Minnesotans need to get mad… or accept that we will all need to start living under opaque bubbles to secure our Fourth Amendment rights. Maybe it’s time to reopen my 2013 petition effort to ‘Declare Hennepin County Drone Free.’
Below are the questions we asked HCSO Public Information Officers. As soon as we receive any reply we will update this story.
“Thanks for taking some time out of your day to answer these questions which the public will undoubtedly benefit from the answers of.
After talking with Sen. Dibble and Ben Feist of the ACLU about the renegotiation of SF1299 and it’s House companion they indicated several aspects of the bill that law enforcement wish to renegotiate. Most prominently being the wish to get rid of the provision restricting weapons being placed on drones. It was indicated that things like netting would desirable. Does HCSO have a position on this? It seems to contradict a previous position that drones will be used exclusively for things like search and rescue missions.
The UAS policy states that data incidentally acquired on individuals not subject to investigation must be destroyed after 30 days. Could this incidental collection be used to open criminal or other investigations?
What is the N-number of the drone?
How does HCSO plan on getting around the stipulation that this drone not be used for surveillance as it is equipped with a camera?
The UAS policy remarks that all operations will be consistent with federal and constitutional requirements yet the federal government indicates that aerial surveillance is allowed to be performed without a warrant. What procedure does HCSO plan on implementing to ensure judicial oversight? Will law enforcement apply for warrants / court orders before or after flying a drone?
Have there been discussions of future purchases of drones or is HCSO only planning on using this quadcopter?
Again, thanks for your time.”