Drone on Drones: Government Regulation of Drones in Law Enforcement

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While a controversial proposed state bill that would restrict law enforcement agencies’ use of drones is drawing criticism, the federal government is also tackling ways to regulate the use of this new technology. These actions are just some of the ways lawmakers at all levels are attempting to keep close tabs on unmanned aerial vehicles.

Last week, the State Senate amended and approved AB 1327, which, if approved in a concurrence vote by the Assembly and signed by Gov. Jerry Brown, would require public agencies to obtain a warrant before using drones to gather “criminal intelligence.” The small handful of exceptions to this new warrant requirement includes emergency conditions, such as when officers must contend with a brush fire or an armed gunman.

Criticized by law enforcement groups, the new legislation appears to shoulder law enforcement agencies with a greater burden than currently exists under the 4th Amendment to the U.S. Constitution, which has been interpreted to allow law enforcement officers to lawfully observe — without obtaining a warrant — what can be seen from public airspace.

AB 1327 reflects just one facet of the ongoing uncertainty that surrounds drone technology, usage, law and policy. While the FAA is due to release broad guidelines for drone use and operation next year, to date, there has been precious little legal regulation of this emerging technological frontier. Some drone operators dispute whether the FAA has the authority to regulate domestic drone use in the first place, arguing that the agency has no authority to regulate “model aircraft.” Meanwhile, at the state and local levels, lawmakers must grapple with whether any regulation they enact governing the operation of drones will be preempted by federal rulemaking. With precious little case law to serve as precedent, a number of public agencies appear to be waiting for some lawmaking body to make the first move in regulating drone operation.

 


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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