32 Pages Posted: 7 Sep 2014 Last revised: 21 Oct 2015
Date Written: September 5, 2014
The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside.
In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.
I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.
Keywords: drones, law and technology, privacy, surveillance, courts, state legislatures, Fourth Amendment
Suggested Citation: Suggested Citation
Smith, Michael L., Regulating Law Enforcement's Use of Drones: The Need for State Legislation (September 5, 2014). 52 Harv. J. on Legis. 423. Available at SSRN: https://ssrn.com/abstract=2492374 or http://dx.doi.org/10.2139/ssrn.2492374