Unmanned Aerial Systems (UAS), better known as “drones,” have been around for decades. They’ve become a subject of controversy only recently, however, due to their use overseas as pilotless weapon delivery systems. A new North Dakota law brings the controversy to American airspace by approving the use of non-lethal weaponized drone platforms by law enforcement. Those who are worried about the misconduct of militarized American police departments have something new to worry about: cops with the capacity to violate Americans’ civil liberties from the air.
North Dakota’s new law is an interesting case study in legislative evolution. The bill was originally introduced in 2013 to prohibit the weaponization of drones. State law enforcement agencies then lobbied against the use of language specifically prohibiting “non-lethal” weapons. In its current form, the law implicitly allows the use of non-lethal drone weaponry such as tasers, sound cannons, pepper spray, and rubber bullets.
However, the bill does require that law enforcement acquire a warrant before conducting surveillance on private citizens. So it’s a mixed bag. On the one hand, the law seeks to protect the privacy of citizens from snooping airborne cops. On the other hand, it facilitates police abuse by handing a dangerous new weapon to police forces that have shown themselves all-too-ready to deploy surplus military gear against the citizens they are meant to protect and serve.
Some suggest that public-police relations are currently too contentious to permit a proliferation of armed drones. The passage of North Dakota’s bill nevertheless sets an unnerving precedent. Jay Stanley, a senior policy analyst with the ACLU, identified five major reasons why the precedent is troublesome:
- Arming drones incentivizes the use of force. A remote, robotic presence will literally distance police drone operators from the public and desensitize them to the human response to their actions.
- Just because a weapon is “non-lethal” does not necessarily mean it will not be deadly in some situations.
- The large distance between a weaponized drone and its likely targets makes them woefully inaccurate, especially in the delivery of tear gas or pepper spray.
- The use of such a system is likely to open the door to increased—and increasingly lethal—weaponization over time.
- With increased weaponization, the militarization of America’s already over-militarized police force will escalate and intensify.
As state representative Rick Becker, the author of the original 2013 legislation, pointed out in a recent NPR interview:
If one did not take into consideration the concerns for civil liberties and looked only at maximum effectiveness, weapons on drones potentially could be highly effective.
Of course, civil liberties are of paramount concern when dealing the use of weapon-bearing drones, which is precisely why Becker fought not only for privacy protections in his original bill, but also language that explicitly prohibited the use of lethal and non-lethal weaponry. Unfortunately, law enforcement lobbied to nullify the non-lethal provisions of the bill, leaving the people of North Dakota with a bill that protects them from extrajudicial government surveillance on the one hand, yet permits the use of drones as armed platforms on the other.
Becker went on to indicate that he will introduce a bill that forbids non-lethal on-board weaponry when the North Dakota legislature reconvenes in 2017. Until then, North Dakota’s police will be able to use weaponized drones, and their willingness to do so will, hopefully, face intense scrutiny.
On the whole, commercial drones are likely to be a force for economic growth and a net benefit to consumers. Even in the midst of an uncertain regulatory landscape, the commercial drone market is poised to explode, potentially adding tens of thousands of new jobs to the economy and producing tens of billions of dollars in additional economic growth over the next 5-10 years. (See these public interest filings from the Mercatus Center for more on the UAS regulatory environment, and these Watchdog articles.) The trouble is not with drones per se, but with the worrisome possibility that police and domestic law enforcement agencies will use this new technology not just surveil but to control American citizens.
Over the coming years, it will be important to balance the regulatory openness that will allow the economic benefits of drones to materialize with new protections for privacy and other rights. Disagreement over how best to strike that balance is inevitable. But civil liberties advocates from across the political spectrum ought to be able to agree that law enforcement does not need yet another destructive tool in its arsenal.