Concern over drones unites GOP and ACLU

Few Virginians have had any contact with a drone and it might be years — if ever — for their use to be commonplace in the commonwealth.

But comments by Gov. Bob McDonnell last summer, signaling his openness to the use of drones in local law enforcement, have triggered concern from civil liberties groups and lawmakers over the threat to privacy posed by the unmanned aircraft.

This concern is the reason for an unusual alliance between the American Civil Liberties Union of Virginia and Del. C. Todd Gilbert, R-Shenandoah. On Tuesday, ACLU representatives and Gilbert will roll out the Republican’s legislation that would regulate the use of unmanned aerial vehicles by law enforcement and regulatory agencies.

Gilbert’s bill would restrict the use of drones and the use of image retention. It also would require agencies and localities to follow strict policies regarding auditing and effectiveness tracking and ensure a public procurement process before authorizing such use.

“The question is, do we want to live in a surveillance society? I want to live in a society that is more like what the Founding Fathers envisioned than one that George Orwell thought we would live in,” Gilbert said.

Another bill, sponsored by Del. Benjamin L. Cline, R-Rockbridge, would put a moratorium on the use of drones in Virginia by state and local law enforcement and regulatory agencies until July 2014.

In May, McDonnell first broached the issue in response to a question asked during a radio appearance on “Ask the Governor” on WTOP radio in Washington.

“I think it’s great,” he said. “I think we ought to be using technology to make law enforcement more productive, (it) cuts down on manpower in the air and also (is) more safe. That’s why we use it on the battlefield.”

McDonnell spokesman Paul Logan said Friday that Virginia is continually exploring new law enforcement technology and techniques designed to keep residents and officers safe while making it more cost-effective to conduct law enforcement activities. But Logan also said no unmanned aerial vehicles are in service in Virginia.

“State police do not currently use drones for law enforcement operations. If state police were to add drones to its law enforcement tools, the state police would first ensure that such use was consistent with all relevant constitutional protections, laws and policies related to their use,” Logan said.

Gilbert said he is aware that drones are not being used in the commonwealth at present.

“What people need to realize is that this technology is readily available and it is getting cheaper by the day,” he said.

Gilbert said the Fairfax County Police Department is one of the agencies looking into the use of drones. But Lucy Caldwell, spokeswoman for the agency, said it has no such plans.

“We are not working on anything related to drones,” she said Friday.

While the domestic use of such vehicles is minimal today due to safety concerns raised by the Federal Aviation Administration, interest among law enforcement agencies nationwide is increasing.

The Customs and Border Protection Agency has used drones since 2005 and has increased their use to cover the entire southern border. It has seven Predator B drones in service, operated remotely by pilots based in Arizona, Florida and North Dakota. The agency plans to expand that number to 24 by 2016, according to an overview on its website.

In its own study, the ACLU has identified a number of law enforcement agencies nationwide actively pursuing the use of drones:

• In 2011, the police department in Mesa County, Colo., won FAA permission to operate its drones anywhere in the county.

• In 2007, police in Houston attempted to carry out secret testing of a drone, which was filmed by local television reporters. Support for the program collapsed when a police spokesman announced that drones ultimately might be used to issue traffic tickets.

• Police in Miami received permission to test two drones. The flights are still restricted to the Everglades and to an altitude no higher than 400 feet.

• In 2011, police in Arlington, Texas, used a drone to help with security at the Super Bowl and received the FAA’s permission to fly the drone for “training and evaluation” purposes in unpopulated areas.

• Hawaii is considering the use of drones for surveillance of the state’s harbors.

Gilbert hopes that his bill will regulate any future use of drones in Virginia.

“These technologies exist in laboratories” for drones “that are the size of bumblebees with cameras on them,” Gilbert said. “Imagine you’re living in a world where the zoning administrator in your locality sends out his bumblebee-sized unmanned aerial vehicle to monitor whether or not you’ve cut your grass according to the county ordinance,” he said.

Gilbert’s proposal would require law enforcement and regulatory agencies to receive approval from the General Assembly before procuring an unmanned aircraft. Operating a drone would require a warrant, limited to 48 hours, and such vehicles could not be armed. The bill also addresses privacy rights.

“I think the governor and I agree 100 percent on all of this,” he said.

Logan, the McDonnell spokesman, said the governor would review the legislation “if Delegate Gilbert’s bill makes it to (his) desk.”

Meantime, Gilbert said he sees an opportunity to work across party lines on the legislation.

“It is one of those strange times when strange bedfellows come together and act to advance a cause they both believe in and I’m happy to be a part of that,” he said.

Hope Amezquita, legislative counsel with the ACLU of Virginia, said, “A proposal that serves to protect the Fourth Amendment,” which protects Americans against unreasonable searches and seizures, “is something that many can agree on.”

mschmidt@timesdispatch.com

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