Amusing at first glance, a 2017 Morning Edition story about three inept smugglers and their attempts to drop illicit goods into a Michigan prison recreation yard carries rather disturbing implications about the challenges drones pose in correctional and public-safety contexts. From their post in a barn near the facility, the amateur drone pilots would have successfully left their bundles — which contained phones, cigarettes, razors, marijuana, and other contraband, according to correspondent Tracy Samilton — had they used their remote-control flying device’s camera when making the deliveries. Because they relied on the drone’s GPS hardware and nothing else, however, they had no way of knowing guards were watching the entire time.
Of course, the NPR story is hardly the first time drones and their problematic aspects have made headlines over the years. Readers may remember the legal kerfuffle that arose when William Meredith shot a neighbor’s device out of the sky as it buzzed over his property, a measure he and his neighbors claim was necessary to protect their rural neighborhood’s privacy. Charges of wanton endangerment and criminal mischief against the self-styled “Drone Slayer” were later dropped, and a federal lawsuit involving the Kentucky native stalled in the early motions when a judge agreed that “federal court [was] not the proper venue for this claim,” according to Ars Technica resident legal expert Cyrus Farivar. More recently in the news are new Federal Aviation Administration (FAA) regulations regarding “recreational flyers” and the rules and responsibilities pilots must now obey. Among other mandates, pilots must steer clear of large groups, remain below certain heights in “Class G” airspace, and refrain from utilizing their devices when under the influence of drugs or alcohol.
These events, which make up only a small portion of the coverage drones have received of late, combine to tell a distinct story about the devices in public safety context. In short, drones may be an entertaining hobby to some, but they reflect a whole new world to law enforcement and other agencies tasked with enforcing lawful use. Though clearly on lawmakers’ radar with the passage of the FAA regulations, the devices still pose a number of open questions touching on everything from land ownership to basic privacy to safe pilot conduct — questions that will undoubtedly be answered in courtrooms across the country before a cohesive set of rules and regulations can be put forth, at the federal level or otherwise.
Returning to the above-mentioned “Drone Slayer” case, the actions of both Meredith and his drone-piloting neighbor, John D. Boggs, opened a Pandora’s Box of considerations that have yet to be fully resolved. Meredith claims he fired at the device because it hovered and lingered around his property, and that he “never would’ve shot it” had it simply flown over his property. Boggs, meanwhile, claims he was too inexperienced a pilot to maintain the below tree line altitude Meredith accuses him of holding, and that his intention was to conduct a test-flight of a recently purchased device, not the blatant voyeurism for which media sources and others have since accused him.
Thus, drone usage need not be clearly illegal, as in the “inept smugglers” example, to pose a headache for the justice system. In the Meredith case, charges were leveled and then dropped in connection with actions that were not entirely covered by criminal law, and high-level servants of the court were asked to provide a clear, exacting definition of trespassing vis-à-vis aerial intrusion. The case calls into question an increasingly murky definition of privacy, and an even harder-to-define take on trespassing. At what height can a drone take photos or videos of your property before it becomes an invasion? For all the specific wording laid out in each state’s trespassing laws, none spell out the altitude at which a trespass can occur.
Finding even a general remedy for these concerns has proven immensely difficult. The challenge is such that even well-regarded, highly influential bodies like the Uniform Law Commission (ULC) have struggled to put forth a set of high-level rules. The complexity lies in that they must respect the rights of landowners, grant drone pilots a degree of freedom to pursue their hobby, and — most importantly — fall within the realm of existing laws.
Indeed, the ULC’s ongoing work on the matter may be the clearest sign of where we can expect drones to land, legally speaking, in the near future. The Commission, whose recommendations are “historically influential,” initially published a proposed set of universal rules on drone piloting in 2018. The proposal was so unpopular it drew comment from both the Department of Transportation and FAA, not to mention the unmitigated scorn of the drone/unmanned aerial vehicle (UAV) industry and associated lobbies. Much of the derision came from the document’s attempt to link traditional rules regarding trespassing to unmanned drone flight, a proposed change that would ultimately “[divide] the airspace up into balkanized property controlled by millions of individuals rather than a single national sovereign,” according to in-depth analysis from the above-linked Wiley Connect piece. The criticism sent the Commission back to the drawing board, where they met with expert sources ranging from legal think tanks to industry figures. Work on the suggested law is ongoing, but sources indicate the current work in progress is better received than the initial draft. Perhaps this is the single clearest sign that a near Wild West in drone usage is approaching a better legislated, easier-to-control future.
Returning now to the “inept smugglers” example, the other side of the drone issue involves cases in which the law is exactingly clear, but the technology itself makes illicit behavior too easy, lucrative, or advantageous not to attempt. While legally ambiguous behavior as in the Meredith case can create a problematic lack of clarity, these situations that are clearly criminal actually pose more trouble for public safety officials, particularly in corrections and law enforcement.The Uniform Law Commission’s first set of drone piloting rules brought unmitigated scorn from the drone/unmanned aerial industry.CLICK TO TWEET
To be sure, the case covered in Morning Edition is far from the only one in which criminals have used drones to facilitate illicit behavior. In another case destined for the inept-criminal books, smugglers in Scotland found the camera on their device worked against them, as it recorded direct footage of them attempting to unload packets of marijuana within prison walls. But a more successful group managed to smuggle “more than £500,000 worth of drugs into prisons” around the UK before their detection and capture; their deliveries included crack, heroin, and amphetamines.
Of all these examples, the last goes beyond humorous watercooler fodder and raises several serious questions regarding drone technology. How many smugglers have successfully used unmanned flying devices to achieve their goals? Moreover, considering the difficulties inherent in traditional smuggling methods — e.g. using mail services or outside “mules” with access to some area of the prison — is it fair to assume drones carry a higher relative chance of success?
Events in Pennsylvania underscore just how steep the challenge can be — and just how much danger the presence of drones can add to an already challenging environment. A 2018 statewide lockdown occurred after corrections officials noticed a “sharp spike” in illnesses related to drug exposure, such as fentanyl and amphetamine. While drones were never officially named as entry vectors, the state’s subsequent decision to fit all correctional facilities with anti-drone technology suggests the suspicion was at least a factor.
What happens, then, when drone endeavors forgo the usual slate of drugs, banned personal care items, and pornographic videos and veer into more dangerous items, such as firearms or explosives? This worrisome question was posted in a 2016 Washington Post piece. In Venezuela, explosive-laced drones came dangerously close to President Nicolas Maduro during a public appearance. This near-miss occurred despite an overwhelming military presence at the site of the attack, perhaps the starkest example yet of the problems the technology can pose when placed into the wrong hands.
At this point in the technology’s relatively young lifecycle, solutions to these problems (just like laws related to their use) have yet to reach full maturity. In a fascinating in-depth look at the topic, industry site Defense One breaks the slate of current solutions down into four broad categories:
Of these, Defense One says the devices in the first three categories are in various stages of completeness and effectiveness. To the site’s knowledge, a viable commercial solution in the fourth category has yet to hit the market.
As is common with drones, a tangle of legal and legislative considerations make finding a one-size-fits-all solution next to impossible. Deploying every possible counter-drone technology available today would place the buyer in violation of over 20 federal laws and regulations, Defense One says, many of them serious enough to result in lengthy prison sentences. Because drones operate on different frequencies and run on different software platforms, a tool that stops one device dead in its tracks may have little or no effect on another. The problem gives illegal drone pilots, who have already proven their resourcefulness by employing the devices in their plans, a perpetual upper hand.
Fortunately, if human effort and ingenuity have made drones such an attractive target for prison smugglers and other criminals, they can also be extremely valuable in stopping the aerial devices before they cause significant problems.
For corrections agencies in particular, a combination of custom technology and heightened vigilance is likely the best answer. Several companies offer RF-based and sensor-based tracking of unmanned aerial vehicles. Many of these tools stay within the current framework of US law, and some have indeed been awarded government contracts for their ability to detect drone activity in a given area, such as the detection tools installed in Pennsylvania state prisons in the wake of the statewide lockdown.
Following this, agencies would be wise to identify inmate-accessible places where a drone pilot (perhaps aided by an inmate wielding a contraband cellphone) could deposit a small bundle of less than a pound without detection. Areas accessible by inmates with special privileges are of particular concern here. In the above-linked Washington Post piece, a life-sentence inmate and a recently released accomplice were able to run a highly lucrative scheme in large part because the former had been placed on special duty as a dog-handler; his partner in crime would pilot the drone to his location as he went on his scheduled dog walks.
Agencies with other drone-security concerns, meanwhile, may face a larger challenge. Here, preventive measures are likely the best practice. Have personnel noticed added drone activity near areas where the agency operates? Can these drones be traced back to lawful users, such as media sources photographing fires and other scenes from a high altitude? Training and protocol may provide an added layer of security. Ensuring personnel know the difference between illicit drone use and legal flight may be the key to identifying and stopping an otherwise successful illegal operation.
At some level, drones and their criminal potential may seem like a comical concern. However, as the near-fatal attack on Venezuelan President Maduro and the myriad smuggling attempts show, the burgeoning technology when placed in the wrong hands poses a very real risk. While no measures to this point have proven fully effective against the technology, a watchful eye potentially helpful technological solutions may be the best tools at an agency’s disposal; added training to enhance vigilance can further help defend against a growing, flying threat.
Posted on Nov 19, 2019
