ACAD is currently proposing the adoption of anti-drone legislation in Alameda County. Below is our proposed ordinance, to be presented to the Alameda County Board of Supervisors.
Download the full draft legislation packet, with exhibits included:
DRONE RESTRICTION BILL 2012
SHORT TITLE
This legislation shall be known and may be referred to as the Drone Restriction Bill 2012.
LEGISLATIVE INTENT
It is the intent of the Board of Supervisors to ensure the privacy and physical safety of the people of Alameda County by restricting the deployment of drones in Alameda County’s airspace, to the greatest legal extent.
DEFINITIONS
For the purpose of this article, the following terms have the following meanings:
“Drones” are unmanned aerial vehicles (“UAVs”), controlled autonomously or remotely, which are not operated for the exclusive purpose of entertainment. This term includes, but is not limited to, UAVs that store and/or transmit sensor data, such as photos, video, thermal images, and intercepted wireless communications; and UAVs capable of firing lethal or less-lethal projectiles.
“Alameda County’s airspace” includes all airspace above the territorial boundaries of Alameda County, to the extent to which such airspace can legally be regulated by Alameda County. This chapter does not seek to regulate any airspace falling under the exclusive jurisdiction of the Federal Aviation Administration, or otherwise take any action preempted by Federal law.
FINDINGS
WHEREAS the Alameda County Board of Supervisors is charged, under section 12(g) of the Alameda County Administrative Code, with the provision, publication, and enforcement of a complete code of rules prescribing in detail the duties of each of the offices, institutions, and departments of the County,
WHEREAS the Alameda County Sheriff’s Office is an office of the County, and the Sheriff’s power may be restricted by ordinances not inconsistent with state law[1],
WHEREAS the Alameda County Sheriff’s Office seeks to purchase a drone equipped with optical and thermal cameras, and intends to deploy the drone for “surveillance… intelligence gathering… suspicious persons, large crowd control disturbances, etc.,”[2]
WHEREAS drones are tremendously powerful tools of surveillance, vulnerable to serious abuses of police power,
WHEREAS currently existing technology, including helicopters, has proven capable of responding to emergency situations,
PRIVACY
WHEREAS the Supreme Court of the United States has held, in Kyllo v. United States, that the warrantless use of sophisticated surveillance equipment can violate the Fourth Amendment right to freedom from unlawful search,
WHEREAS no regulatory agency is currently responsible for ensuring that drones respect the right to privacy,[3]
WHEREAS law enforcement drone surveillance can be used in conjunction with facial recognition, behavior analysis, license plate recognition, and other technologies, and enable the pervasive surveillance of daily life,[4]
WHEREAS small drones, of the type sought by ACSO, can silently hover outside private dwellings to look in windows from close range, ‘see’ through foliage, fences, and walls using thermal imaging, and monitor internet traffic using packet sniffing technology,
WHEREAS most drones communicate with operators ‘in the clear,’ sending all the data they obtain in open and unencrypted broadcasts that can be, and have been, intercepted by unintended recipients using common and inexpensive technology,[5]
WHEREAS an NYPD aerial surveillance unit was dispatched to monitor a protest in 2004, and instead used thermal imaging technology of the kind sought by Sheriff Ahern to film an unsuspecting couple making love on a balcony, an event the ACLU described as “the kind of abuse that could become commonplace if drone technology enters widespread use,”[6]
WHEREAS the FAA’s plan to integrate civilian drones into domestic airspace by 2015 raises the specter of corporations, private investigators, and other parties routinely monitoring the daily movements of all people,
WHEREAS drones therefore pose grave risks to privacy, making their use both ethically and constitutionally dangerous,
POLITICAL REPRESSION
WHEREAS local law enforcement agencies report ever more ‘suspicious behavior’ to national intelligence fusion centers, and have identified anti-war groups, Second Amendment rallies, third-party voters, pro- and anti-abortion activists, and Muslim lobbyists as potential national security threats,[7]
WHEREAS surveillance drones are prone to abuse by the national intelligence services that are “watching and recording the everyday activities of an ever-growing list of individuals,”[8] whether such data is gathered by national intelligence services directly or merely reported to them by local law enforcement agencies,
WHEREAS persistent surveillance, coupled with currently expanding programs to monitor and criminalize nonviolent activism, threatens to chill First Amendment-protected association,
SAFETY
WHEREAS drones are largely unproven in American civilian airspace, and have only seen widespread use in combat theaters, where they are the least safe class of aircraft currently in operation,[9]
WHEREAS an FAA official testified to Congress that Customs and Border Protection has reported 52.7 drone accidents per 100,000 hours of flight time, seven times the civil aviation rate of 7.11 accidents per 100,000 hours,[10]
WHEREAS drones currently in production do not have the see-and-avoid capability of manned aircraft, and tests of drone collision avoidance systems seeking to mitigate this problem have thus far proven unsatisfactory,[11]
WHEREAS drone control uplinks are vulnerable, which has led to accidental incidents such as a Reaper drone ‘going rogue’ and having to be shot down, as well as deliberate incidents such as a team at UT Austin commandeering a drone in flight using GPS spoofing,[12]
WHEREAS the Federal Aviation Administration’s “UAS Guidance” says that drone flights may not be conducted over urban or populated areas, heavily trafficked roads, or open-air assemblies of people, absent a convincing showing that such operations can be conducted safely,[13]
WHEREAS drones are for the above-stated reasons not yet safe enough to be deployed over populated areas,
UNNECESSARY MILITARIZATION OF POLICE
WHEREAS the Alameda County Sheriff’s Office’s attempt to purchase military drone hardware adapted for civilian use is part of the broader trend towards the militarization of local police forces,
WHEREAS this instance of police militarization is being driven, not by necessity, but by the drone lobby, inasmuch as the Association for Unmanned Vehicle Systems International claims that it “got sections added” to the FAA Reauthorization Bill, and takes sole responsibility for the FAA’s current push towards unfettered drone authorization[14],
WHEREAS community policing, the program under which ACSO seeks to purchase drone technology, was initially developed “to build bonds of understanding and trust between police and citizens,”[15]a goal which is not served by expanding the surveillance state,
WHEREAS the blurring line between civilian police and the military, exemplified by the police deploying drone technology developed to fight the War on Terror, erodes ties between police and community members and thereby damages public safety,[16]
WHEREAS Sheriff Ahern argues that drone technology is necessary to confront rare public emergencies, in an eerie echo of LAPD Chief Daryl Gates’ argument that police paramilitary capabilities were required to confront egregious violent crime,[17]
WHEREAS, between 1972 and the present, violent crime rates decreased, yet annual paramilitary police deployments skyrocketed from several hundred to over 50,000,
WHEREAS paramilitary police forces, once established, are rarely deployed against the emergencies used to justify their creation, and are instead almost always used to conduct ‘proactive policing’ in the form of hostile and often violent raids on low-level drug suspects,[18]
WHEREAS the example of paramilitary policing, which is now accepted as commonplace, shows that expanded law enforcement capabilities suffer mission creep, while becoming pervasive and entrenched,
WHEREAS the argument that the Sheriff requires drones, but will use them only for emergency response, is therefore unpersuasive,
NOW THEREFORE BE IT RESOLVED that the County of Alameda, with this resolution and by proclamation, declares Alameda County to be free from drones, commits the County to all legal means to resist the acquisition and use of drones by any citizen or agency of the County, and instructs the County Counsel to transform this declaration into an Ordinance for Alameda County, banning drones from Alameda County’s airspace to the greatest extent permitted by Federal and state law. This Ordinance shall provide that:
(a) Any person flying a drone within Alameda County’s airspace shall be guilty of a misdemeanor, to wit, Unlawful Drone Use.
(b) No agency or department of Alameda County shall purchase, lease, borrow, or otherwise acquire the use of a drone.
(c) No officer or employee of Alameda County shall make any use of drones in the discharge of their duties, nor shall officer or employee request or accept any kind of data gathered by third parties using drones.
(d) Under no circumstances shall any officer or employee of Alameda County use drones to surveil any person without a warrant.
(e) Under no circumstances shall any personally identifying information captured by drones, including images of identifiable individuals, be retained or shared with any agency.
(f) Failure of a county officer or employee to comply with the provisions of this chapter shall constitute malfeasance in office under Alameda County Administrative Code § 1.04.080.
BE IT FURTHER RESOLVED that Chapter 2.56 of the Alameda County Administrative Code be amended, by the insertion of Section 2.56.035, which shall be entitled “Limitation of Powers—Aerial Surveillance,” and shall provide:
(a) The sheriff shall conduct no aerial surveillance of any person or property within Alameda County, except as authorized by a warrant.
(b) The sheriff shall use no data obtained via aerial surveillance to support a declaration of probable cause or otherwise justify or further an investigation.
(c) Information obtained via aerial surveillance shall be offered as evidence only if the aerial surveillance was conducted under a lawful warrant and is being offered against the target of that warrant.
BE IT FURTHER RESOLVED that this Ordinance shall not be enforced in a selective manner or otherwise be used to interfere with individual lawful investigations undertaken by law enforcement agencies within Alameda County, but shall instead be rigorously and consistently enforced.
BE IT FURTHER RESOLVED that all violations of this Chapter, all investigations into violations of this Chapter, and all reports or complaints regarding Unlawful Drone Use made to any County office or department, shall be reported to the County Administrator’s Office. The County Administrator’s Office shall electronically compile all such reports, keep them in perpetuity, and make them available to any person who inquires.
BE IT FURTHER RESOLVED that County agencies, including, but not limited to, the County counsel, the Airport Land Use Commission, and the Port Authority shall work together to establish the scope of this law and ensure that members of the public can understand its particulars. This effort shall include, but not be limited to, a description of all Alameda County airspace not under exclusive Federal jurisdiction.
BE IT FURTHER RESOLVED that County agencies and associated entities shall seek the participation of internal and external stakeholder groups, and convene a Drone Committee within 6 months of the signing of this Resolution. The Drone Committee shall meet regularly to examine the threats to safety and privacy posed by drones, including the nature of developing drone technology and all reports compiled in compliance with the two preceding paragraphs. The Committee shall work in light of the FAA’s proposed integration of drones into the civilian airspace by 2015, and devise legal and other mitigation strategies to safeguard privacy. Such strategies should include, but not be limited to, proposals of anti-drone legislation consistent with Federal law, and presenting the County and its people with reports on the use of drones within the region.
[2] ACSO Captain Tom Madigan, “Homeland Security Grant Request for FY2012” (July 20, 2012), obtained via public records request and available at https://www.muckrock.com/news/archives/2012/oct/19/alameda-county-sheriff-seeks-drone-thermal-imaging/
[3] Gerald L. Dillingham, Testimony Before Subcommittee on Oversight, Investigations, and Management, Committee on Homeland Security, US House of Representatives, July 19, 2012, http://homeland.house.gov/sites/homeland.house.gov/files/Testimony-Dillingham.pdf
[4] Congressmen Edward Markey and Joe Barton, Letter to FAA Administrator Michael P. Huerta (April 19, 2012), http://markey.house.gov/sites/markey.house.gov/files/documents/4-19-12.Letter%20FAA%20Drones%20.pdf
[5] Noah Schachtman and David Axe, “Most U.S. Drones Openly Broadcast Secret Video Feeds,” Danger Room (October 29, 2012), http://www.wired.com/dangerroom/2012/10/hack-proof-drone/
[6] Jay Stanely and Catherine Crump, “Protecting Privacy from Aerial Surveillance,” ACLU (December 2011), https://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf
[7] David Rittgers, “We’re All Terrorists Now,” Cato Institute, February 2, 2011, http://www.cato-at-liberty.org/we%E2%80%99re-all-terrorists-now/
[8] Mike German and Jay Stanley, “Fusion Center Update,” American Civil Liberties Union, July 2008, http://www.aclu.org/files/pdfs/privacy/fusion_update_20080729.pdf
[9] The Global Hawk, Predator, and Reaper drones have a combined rate of 9.31 accidents for every 100,000 hours of flight time, more than triple the fleetwide average of 3.03. See Brendan McGarry, “Drones Most Accident-Prone U.S. Air Force Craft,” BGOV Barometer, June 18, 2012, http://www.businessweek.com/news/2012-06-18/drones-most-accident-prone-u-dot-s-dot-air-force-craft-bgov-barometer
[10] FAA Vice President for Systems Operations Nancy Kalinowski, Statement to Subcommittee on the Role of Unmanned Aerial Systems, July 15, 2010, http://www.faa.gov/news/testimony/news_story.cfm?newsId=11599
[11] Federal Aviation Administration, Evaluation of Candidate Functions for Traffic Alert and Collision Avoidance System II on Unmanned Aerial Systems, March 21, 2011, http://www.faa.gov/about/initiatives/uas/media/TCASonUAS_FinalReport.pdf (concluding that the system should not be authorized for use on drones).
[12] Jeremy Hsu, “Air Force Shoots Down Runaway Drone Over Afghanistan,” Popular Science, http://www.popsci.com/military-aviation-amp-space/article/2009-09/when-drones-go-wild-air-force-shoots-them-down; Shepard et al., “Evaluation of Smart Grid and Civilian UAV Vulnerability to GPS Spoofing Attacks, preprint of the 2012 ION GNSS Conference, 2012, http://radionavlab.ae.utexas.edu/images/stories/files/papers/PMUAndUAVSpoofingION2012.pdf
[13] Federal Aviation Administration, Interim Operational Approval Guidance, March 13, 2008, http://www.faa.gov/about/initiatives/uas/reg/media/uas_guidance08-01.pdf
[14] Association for Unmanned Vehicle Systems International, 2011 Annual Report p. 4, available at http://higherlogicdownload.s3.amazonaws.com/AUVSI/958c920a-7f9b-4ad2-9807-f9a4e95d1ef1/UploadedImages/2011_AnnualReport.pdf
[15] Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America, p. 15, Cato Institute, 2006, http://www.cato.org/pubs/wtpapers/balko_whitepaper_2006.pdf
[16] Al Baker, “When the Police Go Military,” The New York Times, December 3, 2011, http://www.nytimes.com/2011/12/04/sunday-review/have-american-police-become-militarized.html?pagewanted=all
[17] Balko, Overkill, p. 10.
ACAD 
[…] before allowing the Sheriff to acquire a drone. Alameda County Against Drones has come up with draft legislation for a moratorium on the purchase and use of unmanned aerial vehicles in Alameda County, and the […]