Drones and Criminal Law

A.    Department of Justice Guidance on UAS

On February 15, 2015, the White House issued a presidential memorandum entitled, “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems.” Memorandum from President Barak Obama to The Heads of Executive Departments And Agencies (Feb. 15, 2015). On May 22, 2015, the Department of Justice issued agency-wide guidance on the use of UAS by its law enforcement agencies. DEPT. OF JUSTICE, POLICY GUIDANCE: DOMESTIC USE OF UNMANNED AIRCRAFT SYSTEMS (2015). The guidance notes that UAS have emerged as viable law enforcement tools to support kidnapping investigations, search and rescue operations, drug interdiction, and fugitive investigations, among other functions. The guidance reiterates, however, that deployment of UAS must be consistent with the U.S. Constitution and the laws, regulations, and policies that govern Department activities and operations, including those protecting privacy and civil liberties.  Under the DOJ guidance, for example, UAS may be used only in connection with properly authorized investigations and activities.

Prior to use, Department personnel must assess the relative intrusiveness of UAS deployment, balanced against the particularized investigative need, taking into consideration factors such as whether the subject possesses a reasonable expectation of privacy relative to the proposed UAS use; the scope of the proposed use; the risk of disclosure to the subject; the seriousness of the crime or national security threat; the strength and significance of the information to be obtained; the efficiency of method versus alternative means available; the amount of information already known about the subject; and the operational security needs of the investigation. To promote accountability, the DOJ guidance requires that approval for UAS use be granted at the Assistant Special Agent in Charge or equivalent level in the relevant field office, and by an executive level supervisor within the agency’s aviation support unit or a designated executive level supervisor at the agency’s headquarters. The DOJ guidance also requires consistent safeguards regarding data retention, annual privacy reviews by Senior Component Officials for Privacy, and annual reports to the Deputy Attorney General.

B.    Constitutional Issues Surrounding Law

Enforcement Deployment of UAS Federal courts have not directly addressed the constitutionality of warrantless UAS surveillance during government investigations. However, several Supreme Court cases may support warrantless UAS surveillance under certain circumstances. See Florida v. Riley, 488 U.S. 445 (1989) (upholding the constitutionality of warrantless helicopter surveillance 400 feet above defendant’s greenhouse); California v. Ciraolo, 476 U.S. 207 (1986) (upholding the constitutionality of warrantless airplane surveillance 1,000 feet above private property); Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (EPA had statutory authority under the Clean Air Act to use aerial photography to perform “site inspection,” and aerial photography of the chemical company’s industrial complex was not a “search” for Fourth Amendment purposes). But see United States v. Causby, 328 U.S. 256 (1946) (holding that a compensable Fifth Amendment “taking” is cognizable where government flights invaded the “immediate reaches above” plaintiffs’ land). Judicial decisions regarding the constitutionality of warrantless UAS surveillance are likely to be highly fact-specific, weighing expectations of privacy and the scope of the surveillance.

Notably, in Riley, Justice White’s majority opinion recognized that warrantless surveillance of the defendant’s property was constitutional in part because helicopters were available to the general public and not uncommon in the vicinity of the property. Therefore, the defendant had no reasonable expectation that a helicopter would be prohibited from viewing the details of his property observed by the police helicopter. But see United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987) (placing a surveillance camera to record all of the activity in defendant’s backyard was a “search,” but a search warrant authorizing video surveillance for 30 days did not violate the Fourth Amendment). In the UAS context, hundreds of civilian UAS are available for retail for prices starting at below $20.00, and the FAA estimates that total drone sales will grow from 2.5 million this year to 7 million in 2020. Hence, the expectation that a drone may view details of real property today may be comparable to the expectation that a helicopter may do so.  However, using UAS to collect information about the intimate details of a residence or its occupants is likely to raise constitutional issues comparable to those addressed in Kyllo v. United States, 533 U.S. 27 (2001) (holding that the warrantless use of a thermal imaging device not available to the general public that revealed intimate details of the home was unconstitutional). Federal courts could also analogize drone surveillance to the warrantless installation of a GPS tracking device in a suspect’s vehicle, which the Supreme Court decided was unconstitutional in United States v. Jones, 132 S. Ct. 945 (2012). If warrantless UAS surveillance is challenged on constitutional grounds in a federal criminal case, prosecutors may consider producing technical experts to explain how drone technology, operations, and retail make UAS more analogous to the aircraft in Riley and Ciraolo than to the thermal imaging device in Kyllo or the GPS tracking device in Jones. Of course, obtaining a search warrant prior to UAS surveillance will help to ameliorate such challenges.  One recent example of an oblique constitutional challenge involved a father and son in Connecticut, Bret and Austin Haughwout, who challenged the FAA’s use of administrative subpoenas requiring disclosure of information about the use of weaponized drones in YouTube videos recorded in their backyard. Amanda Pinney, Father, son fight FAA over gun-firing, flame-throwing drones, THE DAILY DOT, (July 5, 2016). One video shows a drone equipped with a handgun firing rounds. A second video shows a drone equipped with a flamethrower igniting a spit-roasting Thanksgiving turkey. The Haughwouts challenged the FAA’s authority to regulate recreational drone use, contending that the FAA did not have good faith or a legitimate purpose for its investigation because UAS are not properly subject to regulation as “aircraft” under the FAA’s statute. See Huerta v. Haughwout, 3:16-cv-358, slip op. at 2 (D. Conn. July 18, 2016). The district court was unpersuaded by the Haughwouts’ arguments. The court noted that it seemed clear “that Congress intends for the FAA to regulate at least some drones owned by individuals,” citing the FAA Modernization and Reform Act of 2012, P.L. 112-95 §§ 331–336 (codified at 49 U.S.C. § 40101 note) and regulatory interpretations of “aircraft” as encompassing “unmanned aircraft.”  See Huerta v. Pirker, 2014 WL 8095629 (N.T.S.B. Nov. 17, 2014). But the district court also noted the existence of “substantial questions about the scope of the FAA’s regulatory enforcement authority,” including whether “Congress intends—or could constitutionally intend—to regulate all that is airborne on one’s own property and that poses no plausible threat to or substantial effect on air transport or interstate commerce in general.”  Huerta, 3:16-cv-358, slip op. at 4. 

C.     UAS and Federal Criminal Prosecutions

Public use of UAS may implicate a number of criminal laws. For example, the FAA has designated the 15-mile radius surrounding Ronald Reagan National Airport (which includes all of Washington, D.C.) as a “No Drone Zone,” as part of the Special Flight Rules Area (SFRA) for the National Capital Region (NCR). FED. AVAITION ADMIN., NO DRONE ZONE (2016). Special events such as the Super Bowl and the Republican and Democratic national conventions have also received temporary “No Drone Zone” designations. FED. AVAITION ADMIN., NEW FAA VIDEO EXPLAINS THAT THE SUPER BOWL IS A NO DRONE ZONE (2016). In October 2015 testimony before the FAA, Deputy Administrator Michael Whitaker stated that the FAA “will work with our local law enforcement partners to prosecute” those who endanger other aircraft or people and property on the ground. Ensuring Aviation Safety in the Era of Unmanned Aircraft Systems: Hearing before the Aviation Subcomm. of the H. Transportation and Infrastructure Committee, 161st Cong. Rec. D1071-01 (2015) (statement of Dep. Adm’ Michael G. Whitaker). As noted above, the chart attached to this article lists several federal criminal statutes that may be relevant to such federal criminal prosecutions.   In one of the first federal drone prosecutions, the U.S. Attorney’s Office for the District of Hawaii prosecuted a defendant for violating lawful orders of a U.S. park ranger, including an order to refrain from flying a drone over a crowd gathered to view the Halema’uma’u crater in Hawaii Volcanoes National Park. Press Release, Dept. of Justice, U.S. Attorney’s Ofc. Dist. of Haw., Hilo Man Convicted Of Disobeying Park Ranger (Feb. 12, 2016). See also United States v. Sanders, 1:15-cr-00558 (D. Haw. 2016). Although the defendant in Sanders was convicted only of disobeying one of the other orders issued by the Park Ranger, the case is notable for underscoring some of the challenges associated with dronerelated prosecutions. For instance, the applicability of federal regulations governing aircraft in federal parks has been questioned because they define “aircraft” as “a device that is used or intended to be used for human flight in the air, including powerless flight,” see 36 C.F.R. § 1.4 (2017),  or prohibit air delivery with provisions that restrict “[d]elivering or retrieving a person or object ... by other airborne means . . ,” see 36 C.F.R. § 2.17(a)(3) (2017); see also Gregory S. Neal, Yosemite Looks to Ban Drones by Relying on an Absurd Legal Argument, FORBES,  May 3, 2014. In Sanders, federal prosecutors also alleged a violation of the Hawaii Volcanoes National Park Superintendent’s Compendium of 2015, which specifically prohibits the use of “unmanned aircrafts.”  Prosecutors should consider this example in determining applicable sources of law in drone-related investigations.

D.    Possible Future Scenarios

Future scenarios may encompass all sorts of activities involving UAS, including circumstances involving UAS operators who lose control of “runaway” or “rogue” drones, which can create nuisances or even harm members of the public, to graffiti artists using UAS to deface tall billboards. Craig Whitlock,  Rogue Drones a Growing Nuisance Across the U.S., WASHINGTON POST, Aug. 10, 2015;  Amber Sutherland and Natalie O’Neill, Graffiti ‘Artist’ Uses Drone to Deface Kendall Jenner ad, N.Y. POST, May 1, 2015.  One area of special concern is UAS interference with important government operations, such as wildland firefighting. Firefighters battling forest fires in California recently have complained that UAS intrusions into fire scenes more than doubled from 2014 to 2015. Rogue UAS operating near a fire scene may negatively impact the ability of firefighters to maneuver. In July 2016, for example, firefighters battling the Sand Fire in Southern California were forced to suspend aerial firefighting operations for about 30 minutes after an unauthorized UAS entered air space temporarily restricted by the FAA due to the active wildfire. Jeff Daniels, As Sand Fire Rages, Feds Turn Up Heat in Fight Against Drones Interfering in Wildfires, CNBC, July 26, 2016. UAS facilitated acts of terror are also a possibility. The Haughwouts in Connecticut have demonstrated that UAS can be armed with harmful payloads, such as guns or flamethrowers. In 2015, the BBC reported that a man protesting the Japanese government’s nuclear energy policy flew a UAS equipped with a small camera and radioactive material onto the roof of the Japanese prime minister’s office. Japan radioactive drone: Tokyo police arrest man, BBC, Apr. 25, 2015. Although no one was hurt, the episode raised security concerns about extremists using UAS to carry out attacks. Indeed, as recently as October 2016, the New York Times reported that ISIS has employed so-called “exploding drones” against enemy forces. Michael S. Schmidt & Eric Schmitt, Pentagon Confronts a New Threat from ISIS: Exploding Drones, N.Y. TIMES, Oct.11, 2016.