In February our fair City of Seattle – most recently in the news for our passage of bills legalizing gay marriage and marijuana use – took a stand against a disturbing trend: law enforcement putting aerial drones over our heads. The Seattle Police Department spent $80,000 in 2010 to acquire two small drones equipped with cameras which were supposed to be used only in certain criminal investigations and to search for missing persons, although I don’t think it’s hard to imagine the potential for abuse in those scenarios. Thankfully, Mayor Mike McGinn and the Seattle PD jointly decided to ground the project. The SPD claims that it decided to end the project to “focus its resources on public safety and the community-building work that is the department’s priority,” but I think it’s more likely that the project was grounded due to the heated criticism by residents and the ACLU, and a public outcry over privacy issues.
As a citizen (and as an attorney who deals with the police on a regular basis) I am proud that the public was able to see this for what it is. While it’s true that the drones would not have carried weapons and can only stay in the air for 15 minutes before their batteries run out – a point made by the SPD that was supposed to make them seem less of a threat but almost makes them seem useless – the real issue is not about our safety, but about our right to privacy and our trust that our government will respect that right. The use of these drones, the way that I believe the SPD would ultimately use them, would almost certainly amount to warrantless searches and the slope would only continue to get more slippery. But, crisis averted, right? Or so it seemed …
A month after the drone program was grounded, the Seattle City Council approved new legislation governing how and when the city can use and operate this type of surveillance equipment. Hmm. Trying to sell us on the drones again? The new legislation would provide that any city department that wants to use surveillance equipment, including drones and cameras, would simply have to get prior approval. Departments would have to spell out how they plan to use the devices, and the City Council would hold a public hearing on the proposal before giving the Ok. So far so good. And then, oops, a last minute amendment! The amended bill would allow police to use drones without approval under three sets of conditions: 1) when they have a warrant to do so; 2) no warrant, but under certain “exigent” circumstances; and 3) in the course of a criminal investigation when the courts would not require a warrant for specified kinds of surveillance in public spaces. Not so surprisingly, our Seattle Police Chief, John Diaz, asked the council for these exemptions. He noted that the requirement to secure a warrant could create an “impediment” to investigations because the courts are not inclined to issue warrants when they are not needed. In other words, “we want the ability to do warrantless searches because the courts might not issue a warrant”.
This is NUTS. There is only one reason a court won’t issue a warrant when asked: the warrant is not authorized by law and would result in unconstitutional behavior by police. Is anyone surprised that police want to make this decision on their own without having to consider pesky Constitutional issues? Does anyone trust them to make these legal decisions on their own? Citizens have not in the past, and should not now.