Harvard Journal on Legislation
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 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.
This Article takes up the task of analyzing and comparing state laws regulating the government's use of drones for law enforcement purposes. While the oldest of these laws was enacted in 2013, the thirteen laws passed thus far exhibit wide variations and noteworthy trends. This Article surveys the quickly expanding list of laws, notes which regulations are likely to constrain government drone use, and identifies laws that provide only the illusion of regulation.
While some state legislatures have taken up the task of regulating government drone use, many have left the determination of standards for governmental drone use to the judiciary. This Article advances 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 in law enforcement investigations. And were the judiciary to attempt the task of restricting law enforcement's use of drones, the solutions the courts would propose 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. Moreover, those states that have yet to develop their own regulations should draw upon lessons that can be learned from existing laws and the differences between them.
Michael L. Smith, Regulating Law Enforcement's Use of Drones: The Need for State Legislation, 52 Harv. J. on Legis. 423 (2015).