Key considerations for a law enforcement drone policy (2024)

Police drone use is increasing, making it essential for agencies to adopt a sound law enforcement drone policy governing their use

The use of unmanned aerial vehicles (drones) in public safety continues to grow. According to a recent article in Commercial UAV News, over 1,400 agencies in the United States are now using drones in their law enforcement activities — a 54% increase in the past six years.

Several factors are driving increased drone use, including cost savings and increased availability, as well as updated agency policies and FAA guidelines governing law enforcement UAV deployment.

But drone use is also a complicated issue, bringing with it privacy and safety concerns. As use cases for drones have grown and expanded, so have complaints from citizens and watchdog groups. Law enforcement agencies must not only ensure their officers are properly trained, but also that they are complying with federal and state guidelines.

Having solid policies and procedures in place to guide law enforcement drone use is key to ensuring their legal, safe use. Here are some important law enforcement drone policy areas to consider.

Permitted uses

It’s not difficult to imagine the wide range of benefits drones can provide in public safety. As noted in a 2022 article on Police1.com, some useful law enforcement drone uses include:

• Traffic crash reconstruction
• On-scene reconnaissance prior to tactical deployment
• SWAT operations
• Hostage/barricaded subject situations
• Patrol-led deployment
• Forensic investigations
• Searching for lost persons
• Traffic pattern review
• Indoor tactical operations

Other documented uses include assistance in serving warrants, operations during emergencies and natural disasters, assessing an area/person before committing personnel to a search or entry, mapping outdoor crime scenes, locating stolen property and detecting explosive ordnance. In Minnesota, one agency equipped its UAV with a system that can track people with Alzheimer’s, autism or other related conditions. The individuals wear transmitters that are activated if they wander, and the drone can help quickly locate them.

Staffing and budget shortages are leading some departments to implement Drone as a First Responder (DFR) programs. According to the National League of Cities (NLC), “Small, remotely operated unmanned aerial systems … have proven to be an efficient and effective way of providing public safety critical information that supports better-informed decisions in response to calls for service, emergencies, or to conduct criminal investigations.” Recent tests in Chula Vista and Santa Monica, California, have proven effective. In addition, the California city of Fremont has implemented a joint DFR program that includes both police and fire. A 2023 article on Police1.com provides more details about these innovative (but possibly controversial) efforts.

Interested to see how departments are using drones? Watch the video below.

FAA drone requirements

Since all U.S. airspace is regulated by the Federal Aviation Administration (FAA), drone operations must conform with FAA requirements. There are two ways to obtain authorization to operate a UAV as a public safety agency. The first is to pick one or more members of your department to get FAA certified as pilots and fly under 14 CFR Part 107 rules, also known as Small Unmanned Aircraft Systems Regulations, or sUAS. The second is to get an FAA certificate of authorization (COA) so your agency can be a “public aircraft operator,” self-certifying compliance for both pilots and drones.

Under sUAS, an airworthiness certificate is not required for your UAVs, but each drone must be registered with the FAA. The agency has general rules that apply to all drone use, as well as some special considerations for UAVs operated by first responder agencies. According to the “Drone Response Playbook for Public Safety” guide published by the FAA in 2020, the following scenarios are generally restricted (with certain caveats):

1. Flights at night or over people: Federal regulations generally prohibit drones being piloted after dark or above populated areas, though a waiver can be obtained from the FAA under certain circ*mstances. This means law enforcement must obtain special permission to use UAVs to surveil crowds and protests.

2. Flights in areas where the drone may interfere with manned aircraft: Drone flights should never go over 400 feet and are prohibited altogether in controlled airspace near airports. Again, the FAA can issue a waiver if circ*mstances warrant.

3. Operations beyond visual line of sight: According to FAA regulations, pilots should not fly their UAVs so far afield that they lose sight of the aircraft. When using “first person” view, with or without VR-style goggles, drone pilots should use a spotter who always maintains visual contact with the UAV. This requirement can also be waived if requested beforehand.

4. Drone flights near certain stadium events: When a stadium hosts a large event, such as a football game or outdoor concert, the FAA puts in place a temporary flight restriction (TFR) for both manned and unmanned aircraft that generally begins an hour before the event begins and ends an hour after the event ends. Exceptions to these TFRs include:

• If the aircraft operation has been authorized by local air traffic control for operational or safety purposes.
• If the aircraft operation is being conducted for operational, safety, or security purposes supporting the qualifying event, and is authorized by an airspace security waiver pre-approved by the FAA.
• If the aircraft operation is enabling broadcast coverage for the broadcast rights holder for the qualifying event and is authorized by an airspace security waiver approved by the FAA.
• If the aircraft operation has been pre-authorized by local air traffic control for national security, homeland security, law enforcement or air ambulance purposes.

It’s generally unlawful for drones to carry illegal or hazardous cargo (such as drugs or explosives), or for drones to be outfitted with weapons. The FAA also prohibits piloting a drone while under the influence of alcohol and/or drugs.

Prohibited uses

In addition to federal regulations, drones are also subject to scrutiny from state lawmakers and privacy advocates, creating a growing list of prohibited uses that your agency’s policy must address.

Prohibited uses vary greatly by state. Some areas to watch include:

• Random surveillance and crowd control: At least 18 states have passed laws requiring search warrants for surveillance. These include Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Vermont, Virginia and Wisconsin. Federal prohibitions against flying over populated areas mean drone use for crowd control is banned unless special permission is obtained, though state law may also be a factor.
• Weaponization: Federal legislation prohibits weaponized drones, but several states have taken this even further. Oregon specifically prohibits weaponized UAS, as do Maryland, Vermont, North Dakota, Florida and West Virginia. Some states also bar the use of armored drones.
• Near correctional facilities: For obvious reasons, several states — including New Jersey, North Carolina, South Dakota and Texas — have restrictions regarding drone operations over or near jails and prisons. This is a continuing problem, as drones have been used to deliver drugs, weapons and other contraband to inmates in corrections facilities.
• Facial recognition: It didn’t take long for smart people to outfit drone cameras with biometric technology. Whether state legislatures will be comfortable with that is another question. At least two states (Vermont and Illinois) ban drones with facial recognition capabilities, with exceptions for search and rescue and disaster-related services.

Agencies that subscribe to Lexipol’s Law Enforcement Policies and Updates solution receive a law enforcement drone policy that aligns with applicable state and federal laws, along with monitoring to keep the policy up to date as new legislation is passed.

Importance of preserving privacy rights

As with other technologies, addressing privacy concerns surrounding drones involves a balance of policy and engagement. Your agency’s policy should include a strong statement about the importance of preserving privacy rights. Absent a warrant or exigent circ*mstances, operators should adhere to FAA guidelines and avoid intentionally recording or transmitting images of any location where a person would have a reasonable expectation of privacy, such as a backyard.

Once your policy incorporates strong privacy protection, you will be in a better place to engage advocacy groups concerned about the use of law enforcement drones. Pointing to specific examples of how your agency intends to use the drone and how drones have aided in search and rescue operations can also provide a positive focus to such conversations.

Retention of data

Similar to body-camera footage, data retention issues abound when it comes to drone use. Will all video from the drone be recorded and if so, where will it be retained and for how long? How will your agency deal with footage collected of those who are not the target of criminal investigations? Can your agency freely share or disclose information gathered by the drone with other governmental agencies?

Again, some states have issued specific laws. Illinois, for example, requires law enforcement agencies to destroy all information gathered by a drone within 30 days, except when there is “reasonable suspicion that the information contains evidence of criminal activity, or the information is relevant to an ongoing investigation or pending criminal trial” (725 ILCS 167/20).

Absent any state-specific requirements, it’s probably best to treat information and footage gathered by a drone as you would other records. If your agency has a strong records retention policy, it will probably cover you for records produced by drones as well.

Responsibilities of the drone coordinator

So how do you ensure you’re covering all the complex considerations of using a drone in law enforcement? A best practice is to build the role of drone coordinator into your policy. In most agencies, the drone coordinator will likely not be a separate position, but formally designating someone to coordinate your agency’s drone use helps bring consistency to operations and provides a point of contact for questions or issues.

Following are just a few responsibilities the drone coordinator can take on:

• Ensuring that all operators complete required FAA and agency training
• Developing protocols for conducting criminal investigations involving a drone, including documentation of time spent monitoring a subject
• Implementing a system for public notification of drone deployment
• Recommending program enhancements, particularly regarding safety and information security
• Issuing reports regarding drone use

Take to the skies

When any powerful technology intersects with law enforcement, agencies are faced with a complex balancing act. On the one hand, drones represent a vast potential of new applications in public safety. On the other, agencies must ensure safe, constitutionally sound use. A clear, concise law enforcement drone policy is essential in achieving this balance. If your agency subscribes to Lexipol policies, review the Unmanned Aerial System section for an in-depth look at your current policy requirements.

One final consideration: Keeping your policy and procedures up to date. Drone laws and regulations are very much in flux, with new state legislation popping up frequently. If your agency has established or is considering establishing a drone program, you must ensure you have a way to stay current on changing federal and state regulations.