Maricopa County Sheriff’s Office push for drones stirs privacy concerns

Arizona Central – by JJ Hensley

Cameras affixed to traffic signals at intersections are now commonplace.

A decade ago, law-enforcement agencies began mounting special cameras on patrol cars capable of reading hundreds of license plates a minute.

And Phoenix police have been flying a plane capable of conducting surveillance from 9,000 feet since 2010.  

None of those potentially invasive police technologies has struck a nerve like the notion of an unmanned aircraft stealthily flying above Phoenix-area streets.

But Maricopa County Sheriff Joe Arpaio thrust himself into the forefront of that conversation last week when he touted the idea at a news conference, and media outlets around the world picked up on the story and ran with it.

“A place in Russia said I have a fleet of drones,” Arpaio said Monday. “A fleet. I don’t even have one yet.”

Arpaio could have an unmanned aircraft at his disposal within a year, according to aides. And as more police agencies across the country begin to toy with the idea of using the remote-controlled planes and helicopters outfitted with cameras, experts say, the public can help define how the technology will be used in the future.

The idea, predictably, does not sit well with privacy advocates, who point out that Arpaio’s office has already been found to have violated constitutional protections against unreasonable searches and seizures.

Trusting Arpaio’s agency to legally operate one of the unmanned aircraft, on the heels of a federal court ruling that found his deputies discriminated against Latino residents while attempting to enforce immigration laws, can be a scary proposition, said Dan Pochoda, legal director of the American Civil Liberties Union of Arizona.

But the attendant publicity Arpaio generated last week with the drone talk could turn into a blessing for those who hope that increasing awareness will lead to an awakening about the powerful little aircraft and their inherent potential for abuse.

“Arpaio tries to say, ‘Who cares about the privacy, we’re only after criminals?’ as if you know when the thing takes off that it’s only going to be looking at criminals,” Pochoda said.

“As usual, it’s round ’em up first and sort ’em out later. It’s been a concern of residents around the country, particularly now that a lot of the NSA (National Security Agency) stuff has fallen on fertile ground with people’s concerns. This could be even more invasive than that.”


In western Colorado, the Mesa County Sheriff’s Office expected resistance when administrators there first talked about getting an unmanned aircraft in 2009, so deputies went on something of a promotional tour, sharing information about the system with the media and the public at every opportunity, said Heather Benjamin, a sheriff’s spokeswoman.

“You don’t hide it. You start at the beginning and tell them, ‘We’re looking into this, we’re doing research,'” Benjamin said. “When you get it, you do town-hall meetings, you open the door to your citizens and media and say, ‘Look, we cannot attach missiles to a 3-pound miniature helicopter.’

“You never hide it. The one time you hide it, people will never trust you, and they’ll always question what you’re doing with it.”

Since it started flying in 2010, the office has since expanded the program to include two unmanned aircraft — a 3-pound helicopter and a 9-pound fixed-wing plane — and has flown about 35 missions, the majority of which are for search and rescue and identifying hotspots for fire crews, Benjamin said.

The concerns Mesa County residents now have with the program center on its costs, Benjamin said — which are minimal because the aircraft, which can cost $25,000 to $50,000, were donated and operating costs are about $25 per hour.

Arpaio has said that he plans to cover the costs of any unmanned aircraft with money seized through racketeering investigations and that he foresees two primary uses for the drones: conducting surveillance sweeps on the perimeter of jail facilities, including Tent City in Phoenix, and performing search-and-rescue missions in the desert.

Performing those basic operations are about the only reliable uses police have found for unmanned aircraft because of limitations with the technology and Federal Aviation Administration regulations, said Tim Adelman, a Maryland attorney specializing in regulatory issues related to unmanned aircraft.

The battery-powered aircraft can usually stay in the air for no more than 30 minutes, and the FAA requires operators to file flight plans before every launch and maintain a “line of sight” with the aircraft for the duration of its flight, Adelman said. The flight plan includes a defined area where operators will fly the aircraft, he said.

“You’re not using this thing for routine patrol; you have to be in a ‘defined-incident parameter,’ like a building or a particular field,” Adelman said. “You couldn’t say, ‘Our defined-incident parameter is the entire city.’ The idea that you’re going to have one up for 30minutes over a city is just not practical.”

Legal concerns

A host of specific legal concerns lies beyond the practical limitations the unmanned aircraft pose. The technology will surely advance, civil libertarians say, but the laws and policies put in place now can help dictate how the aircraft are used as they become more practical to fly over neighborhoods in search of criminal activity.

In recent years, eight states have introduced legislation that limits how footage collected through unmanned flights can be used, with most of the legislation requiring police to have a warrant before the images can be used in a criminal investigation.

State Rep. Jeff Dial, R-Chandler, introduced similar legislation in Arizona’s last session, but the measure failed to move out of a committee. Dial did not respond to requests for comment.

Pochoda said the bill was so watered down that the ACLU could not support the final version.

The legislation enacted in other places throughout the country, which requires a search warrant to use footage collected through unmanned flights, is well-intentioned but misguided, Adelman said. Case law already dictates how police can use information they gather from areas where there is an expectation of privacy, he said, but the public’s larger concern should be with how long the footage is stored after a flight is completed and who has access to the information.

Phoenix police have collected nearly 2 million license-plate numbers through plate readers affixed to patrol cars, and police keep those records for three years, raising the possibility that law-enforcement agencies could go back and track a car’s movements years later if the desire arose. Investigators must go through the department’s auto-theft detail to access the license-plate records, and unauthorized access could lead to discipline for violating office policy or criminal charges, according to a police spokesman.

That program, along with the city’s 2010 purchase of a plane capable of conducting surveillance, has drawn little public scrutiny, so far.

Police have long had the capability to record activity from helicopters and the department’s aging fleet of fixed-wing planes, but buying a Pilatus PC-12 capable of recording at 9,000feet has allowed investigators to operate without concerns about disrupting take-offs and landings at Phoenix Sky Harbor International Airport, said Sgt. Trent Crump, a Police Department spokesman.

The plane’s cameras are sensitive enough for officers to determine a suspect’s shirt color or gather details about a vehicle from more than 11/2 miles in the air.

The recordings must be authorized by a detective working an active criminal case, and the footage is kept with the department’s report on the investigation, Crump said. But if officers observe unrelated criminal activity from the air, it’s fair game, he said.

“If we see something that’s unlawful, we have that manned by a police-officer pilot and a camera operator who is also a police officer. If it’s in open view and it was obtained in that realm, certainly we would use it,” Crump said. “The fence is privacy for a homeowner, but it doesn’t give someone a reasonable expectation to commit a crime and not be noticed.”

Policies and procedures work only when an agency’s employees follow them, Pochoda said, and the Sheriff’s Office could not avoid constitutional violations in its quest to drive illegal immigrants out of Maricopa County.

A sheriff’s spokesman said that “Fourth Amendment issues will be respected” because deputies would need to explain to a judge why they gathered the video footage for a criminal prosecution and what types of urgent circumstances existed if they did so without a warrant.

But Pochoda said Arpaio’s track record when it comes to constitutional violations should raise concerns about his use of unmanned aircraft among even his most ardent supporters if they are also adherents to Arizona’s conservative, libertarian tradition.

“I think with some further publicity, the average Arizonan, while we may differ on many issues, would be very opposed to this type of intrusion,” Pochoda said.

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