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C. William Michaels: Maryland and the challenge of domestic drones

The controversy of Unmanned Aerial Vehicles, or drones, armed with Hellfire missiles targeting supposed Al-Qaeda members in various countries—mostly Pakistan, Afghanistan, Yemen, and Somalia—is widely known. That controversy focuses on civilian causality figures, the use and effectiveness of these “drone strikes,” the constitutionality of the program — particularly concerning the three U.S. citizens who have been targeted and killed by these strikes, and the use of the Central Intelligence Agency as the lead agency managing this program (although President Obama has pledged that the Defense Department will soon take the lead).

A loose coalition of civil liberties groups, libertarian groups, peace groups, and watchdog groups have been protesting and calling for an end of these armed drone strikes. The United Nations is considering issuing a report about whether these drone strikes violate international law.

However, another controversy about drones is just starting and is closer to home: the use of domestic surveillance drones and commercial drones. In the last two years especially, this controversy has been ramping up. The Federal Aviation Administration (FAA) has been tasked with issuing proposed regulations on drone use—size, type, flight ceiling — in 2015. These regulations are expected to cover every type and size of drones, from those the size of a dinner plate, weighing less than 25 pounds and with a ceiling of perhaps 500 to 1,200 feet, to drones the size of a small plane, with a flight ceiling of between 18,000 feet and 60,000 feet.

But the FAA is not waiting until then. It has issued more than 1,400 permits for drones since 2007, mainly to state and municipal police departments and civilian federal agencies, and more are coming.

Among those agencies is the Department of Homeland Security (DHS) though the U.S. Customs and Border Protection. The agency has been flying Predator drones — the type most often used in the armed drone strikes in foreign countries — to patrol the U.S.-Mexico border since 2005. Despite critical reports, among them a 2012 Office of Inspector General report stating that the use of drones to patrol the nation’s borders is inefficient and costly ($18 million for each of the drones and support staff), Customs and Border Protection — which currently has a fleet of 10 Predator drones — is planning to expand their use. Among the features of any compromise immigration reform bill being considered by Congress, although to this date none have passed both houses, DHS will have the authority to use surveillance drones to patrol the southern border 24 hours a day.

Commercial use of drones may not be far behind. Jeff Bezos, CEO of Amazon.com revealed in a “60 Minutes” interview late last year that his company is researching a “drone delivery” service for some packages. United Parcel Service and FedEx are conducting similar research.

Some experts are saying that there may be as many as 30,000 unmanned private and government drones flying in this county by 2020, growing drones into a $90 billion industry, and generating as many as 100,000 jobs. The FAA estimates that the number of commercial drones will grow to 7,500 in five years. In fact, some commercial enterprises are already using small drones for such projects as taking videos of luxury properties, collecting footage of surfers, and monitoring extensive land holdings.

Dark side

To be sure, there are some beneficial aspects of drone use — for example, coordinating wildfire firefighting, searching for lost hikers, or monitoring traffic or weather patterns.

But there is a dark side to drone use. Obviously, the image of drone flights overhead is raising some serious privacy and constitutional concerns. In fact, eight states and various municipalities have already passed legislation or resolutions about surveillance drone use, and other states and municipalities are considering it.

Among those considering legislation is Maryland. In last year’s General Assembly session, Delegate Ron George, R-Anne Arundel, introduced House Bill 1233, and in this year’s session it was re-introduced as House Bill 785.

HB 785 would have added Section 1-203.1 to the Criminal Procedure Article, restricting the use of surveillance drones by any law enforcement agency to gather evidence or other information unless a warrant has been obtained. Evidence obtained or collected in violation of this section would not be admissible as evidence in a criminal prosecution.

But, according to that bill, the warrant requirement would not apply to the use of a drone to “respond to an emergency,” defined elsewhere as “a sudden or unexpected happening or an unforeseen combination of circumstances that calls for immediate action to protect health, safety, welfare, or property from actual or threatened harm or from an unlawful act.” With those exceptions, in my opinion, the George bill would leave surveillance drone use wide open.

HB 785 would also add Sec. 3-1901 and Sec. 3-1902 to the Courts and Judicial Proceedings Article, allowing for a lawsuit for civil damages if a drone conducts surveillance or observation on private property without the consent of the owner — except, it is assumed, in a case of “emergency” or with a warrant. Also, evidence obtained or collected in violation of that section would not be admissible in any civil action or any administrative hearing.

This bill, assigned to the Judiciary Committee, did not reach the House floor in 2013 or 2014; nor did a similar bill, HB 847.

Indeed, serious issues about pre-emption may nullify any state or municipal legislation concerning drones, once the FAA (or other federal agency) regulations are in place or if Congress passes some form of legislation limiting the use of drones over U.S. airspace.

On the other side of the drone spectrum, Maryland was among 24 states seeking to be one of six test sites where the FAA is planning to evaluate integrating drones into airspace for the upcoming 2015 proposed regulations. Maryland was not selected, but no matter: commercial drone use is coming to Maryland, and sooner than you think.

Consider that the Johns Hopkins University Applied Physics Laboratory is among the academic institutions on the leading edge of drone research. Moreover, the Association for Unmanned Vehicle Systems, a trade group for drone manufacturers, is estimating an $80 billion effect on the economy related to drones by 2025 — $2 billion of that could be Maryland’s share.

The stakes could not be higher as this controversy gains steam. Arguably, the Supreme Court scholarship on the use of planes or helicopters to gain evidence without a warrant, could pave the way for the use of drones in a similar manner, unless Congress or the Administration steps in.

See, for example, California v. Ciraolo, 476 U.S. 207 (1986) (Fourth Amendment was not violated by use of a plane to view an individual’s property for suspected marijuana production), and Florida v. Riley, 488 US 445 (1989) (approved the use of helicopter to observe individual’s property with no warrant requirement). Or, perhaps the use of drones to conduct surveillance would generate a new line of Supreme Court cases — because drones are materially different in their hovering abilities, the fact that they can peer into any property much more closely, and the fact they can be much more silent than either a plane or a helicopter, among other characteristics.

Currently, no legislation has passed Congress on the use of surveillance drones over U.S. airspace, and any immigration reform bill appears to have stalled. And the Obama Administration is deferring to the FAA, which is not expected to issues its proposed regulations until 2015.

The General Assembly should return to the surveillance drone issue next session and consider very strict legislation on the law enforcement use of surveillance drones. And, while the FAA proposed regulations might pre-empt state legislation on surveillance drone use, they have not done so yet, which leave the door open for the General Assembly to seriously consider its own restrictions.

In this era of vanishing personal privacy and assaults on the Fourth Amendment everywhere one turns, the advent of surveillance drones may be the last buzzing battlefield.

C. William Michaels is an attorney and a member of The Daily Record’s Editorial Advisory Board. The views expressed here are his own and not those of the board.