Chicago Restricts Drones: Who’s Next?

Chicago media outlets are reporting that drones have been banned from most of Chicago’s skies and cannot fly over you or your property without your permission. The text of the ordinance, however, makes exceptions for police that will require eternal vigilance.

Local legislative action around drones began in U.S. cities in early 2013 with the public demand for resolutions opposing foreign drone murders by the military and CIA (and related training in U.S. skies), combined with public concern about domestic U.S. police departments that had begun acquiring weaponized and surveillance drones. This quickly expanded to include concerns about private drones — among other reasons, because surveillance footage from private drones could be acquired by governments. As near misses between drones and passenger aircraft began piling up, those issues of safety were added to the mix.

Chicago has now passed a modified version of an ordinance that forbids any drone “that is equipped with a firearm or other weapon” and any drone flown “with intent to use such small unmanned aircraft or anything attached to it to cause harm to persons or property.” The new law also bans any drone flight “for the purpose of conducting surveillance, unless expressly permitted by law.”

Then come the exceptions: “nothing in this section shall be construed to prohibit any person who is authorized by the Federal Aviation Administration . . . .” And: “nothing in this section shall be construed to prohibit the use of a drone by a law enforcement agency in accordance with Section 15 of the Freedom from Drone Surveillance Act, codified at 725 ILCS 167/1 et seq., or its successor provision.”

That Illinois law allows police to use drones whenever they claim there is “a high risk of a terrorist attack” or they obtain a 45-day warrant from a court, or they decide they don’t have time to bother obtaining a warrant and must act swiftly “to prevent imminent harm to life or to forestall the imminent escape of a suspect or the destruction of evidence,” or they’re attempting to locate a missing person but not undertaking a criminal investigation, or they’re solely doing crime scene or traffic crash scene photography (with a warrant if on private property), or there is a disaster or public health emergency (which need not have been formally declared).

None of that explicitly allows weaponized drones for police, except in so far as the word “terrorist” is generally taken to allow just about anything. So, does Chicago’s ban on weaponized drones remain intact for police? I’m pessimistic. I don’t think the ban on entering the sky over private property or flying at night or flying drunk or any of the other bans survive for police. The law says “nothing in this section shall be construed to prohibit the use of a drone by a law enforcement agency. . . .”

How police drone use works out, I think, depends entirely on how the state law is interpreted and enforced. Who will monitor police drone use? Who will punish violations? The new Chicago ordinance includes penalties: “Any person who violates this section or any rule promulgated thereunder shall be fined not less than $500.00 nor more than $5,000.00 for each offense, or may be incarcerated for a term not to exceed 180 days, or both. Each day that a violation continues shall constitute a separate and distinct offense.” But that sounds like a penalty for an individual, not a government agency.

I’m afraid what has been created is a policy of restricting drone use by individuals in Chicago, without effectively restricting it by the entities most likely to violate rights, intimidate, restrict ability to exercise free speech or assemble or petition the government for redress of grievances, and to use unjustifiable force.

This question is far from settled. Chicago is only one city. Other cities and states could choose to clearly ban weaponized drones, and to ban police surveillance drones under a clear system of supervision, oversight, and accountability.

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