North Dakota has just become the first state to legalize police use of drones equipped with “less than lethal” weapons, including rubber bullets, Tasers, tear gas, pepper spray and sound cannons. Now, police will be able to remotely fire on people in North Dakota from drones, much as the CIA fires on people in other countries.
Although drones in North Dakota will be limited to “less than lethal” weapons, some of these devices can cause injury or even death, according to Christof Heyns, United Nations special rapporteur on extrajudicial, summary or arbitrary executions. He reported that rubber bullets, water cannons and tear gas have resulted in injury and death. “The danger is that law enforcement officials may argue that the weapons that they use are labeled ‘less lethal’ and then fail to assess whether the level of force is not beyond that required,” Heyns wrote. The Guardian reports that at least 39 people have been killed by Tasers as far in 2015.
Heyns warned the U.N. General Assembly that the use of armed drones by law enforcement could threaten human rights. “An armed drone, controlled by a human from a distance, can hardly do what police officers are supposed to do—use the minimum force required by the circumstances,” he said.
Drone manufacturers in North Dakota lobbied hard to stymie efforts that would have required police to obtain warrants before using drones. Al Frazier, a sheriff’s deputy who pilots drones, revealed their motivation. He told The Daily Beast, “I think when you’re trying to stimulate an industry in your state, you don’t want things that would potentially have a chilling effect on [drone] manufacturers.”
When North Dakota police suspected Rodney Brossart of cattle rustling, they asked Homeland Security to use a Predator drone to fly over his land. Predator drones are also used by the CIA to conduct surveillance and drop bombs in Pakistan, Yemen, Somalia, Iraq, Afghanistan and Syria. The police, who didn’t get a warrant to fly over Brossart’s land, used evidence gathered from the drone surveillance to prosecute him. Brossart was convicted of terrorizing, preventing arrest and failing to comply with the law for stray animals.
The Supreme Court has not yet decided whether police must obtain a warrant before using drones. In California v. Ciraolo, the court upheld the warrantless use of a fixed-wing aircraft at an altitude of 1,000 feet to peer into a private, fenced backyard and identify marijuana plants because “any member of the public flying in this airspace who glanced down could have seen everything that these officers observed.” The court noted that no warrant is needed for what is “visible to the naked eye.” The justices reached the same result in Florida v. Riley, in which officers saw marijuana plants in a greenhouse from a helicopter 400 feet above.
But in Kyllo v. United States, the court held that the police need a warrant to use a thermal imaging device that measures the temperature of the roof of a house to detect the growing of marijuana inside. Justice Antonin Scalia wrote for the majority that if the government could freely collect any information “emanating from a house,” we would be “at the mercy of advancing technology—including imaging technology that could discern all human activity in the home.” The majority thought it significant that the technology used in Kyllo was “a device that is not in general public use.”
It is unclear how the court will apply these cases to the use of drones, which could be used to conduct long-term surveillance of private property with imaging systems that pick up much more detail than the naked eye.
Fourteen states have enacted legislation that limits how the police can use drones. But, “in the states that don’t require warrants, it’s pretty much a Wild West,” Jay Stanley, senior policy analyst with the ACLU’s Speech, Privacy and Technology Project, told the National Journal.
Drones are increasingly used for surveillance in the United States.
The U.S. Customs and Border Patrol (CBP), which patrols almost half the Mexican border with drones, has loaned its drones to local agencies and other national agencies, according to the Electronic Frontier Foundation (EFF). Drones were used 700 times for domestic surveillance between 2010 and 2012.
Stanley cautions against government use of drones for mass surveillance. In my book “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues,” he writes:
Police and government agencies, meanwhile, are likely to seek to use this technology for pervasive, suspicionless mass surveillance. To begin with, there is a long history of government agencies seeking to engage in mass surveillance, from the Cold War spying abuses to today’s deployment of license plate scanners and surveillance cameras in our public places, to the sweeping NSA programs that were revealed by Edward Snowden.
Stanley warns about discriminatory targeting of people of color, citing the experience in Britain where black people were 1½ to 2½ times more likely to be the subject of surveillance than the percentage of their numbers in the general population would indicate.
Stanley cites the Electronic Frontier Foundation’s revelation of CBP documents that suggest the CBP will use “non-lethal weapons designed to immobilize TOIs [targets of interest].” But, he thinks, “there is good reason to think that, once current controversies subside and the spotlight of public attention shifts elsewhere, we will see a push for drones armed with lethal weapons.”