San Jose Police Department says FAA can’t regulate its drone use

Newly published documents show that the San Jose Police Department (SJPD), which publicly acknowledged Tuesday that it should have “done a better job of communicating” its drone acquisition, does not believe that it even needs federal authorization in order to fly a drone. The Federal Aviation Administration thinks otherwise.

Late last month, a set of documents showed that the SJPD acquired a Hexacopter called the Century Neo 660, along with a GoPro video camera and live video transmitter. The nearly $7,000 January 2014 purchase was funded through a grant from the Bay Area Urban Areas Security Initiative, a regional arm of the Department of Homeland Security. San Jose, which proclaims itself the “capital of Silicon Valley,” is the third-largest city in California and the tenth-largest in the United States.

The documents, which were sent to MuckRock as part of a public records request and were published on Wednesday for the first time, make a number of statements suggesting that the SJPD has a deep misunderstanding of current drone policy.

The documents also show that SJPD Police Chief Larry Esquivel signed off on the drone acquisition on March 21, 2014, nearly two months after the drone was actually acquired. Esquivel specifically stated that his “approval/implementation” was contingent on a review by the San Jose City Attorney’s Office, a “policy in place—on specific guidelines for UAV,” referring to the drone, and “messaging/outreach to public,” none of which appear to have actually taken place. Ars has filed a new public records request to see if such a review by the City Attorney's Office ever took place.

“The UAV is not a drone”

A March 2014 e-mail from Western Division Commander James Randol to SJPD Deputy Chief David Hober states, "The UAV is not a drone. Drones are regulated by the FAA. The FAA doesn’t regulate our device.”

But that’s not at all the perspective of the Federal Aviation Administration.

“Anyone who wants to fly an aircraft—manned or unmanned—in US airspace needs some level of authorization from the FAA to ensure the safety of our skies,” Ian Gregor, an FAA spokesman for the Pacific Division, told Ars in a statement.

“The FAA authorizes UAS operations that are not for hobby or recreation on a case-by-case basis. Public entities (federal, state, and local governments, and public universities) may apply for a Certificate of Waiver or Authorization (COA), which, when approved, provides authorization for [unmanned aircraft systems] operations in the [national airspace system]," he said.

The SJPD did not immediately respond to requests for comment.

Elsewhere in the Golden State, Ventura County (just north of Los Angeles County) filed for a COA approval from the FAA. Way back in 2006, the Los Angeles County Sheriff's Department tested drones before grounding its program. In 2007, the Sacramento Police Department said it was "exploring" drone use. Even a public utility, San Diego Gas & Electric, announced in July 2014 that it had received FAA approval for drone use in inspection of power transmission equipment.

“The newly disclosed documents raise serious questions about whether the police department did its homework before spending money on a drone that it cannot even legally use,” Catherine Crump, a law professor at the University of California, Berkeley, told Ars. “But more broadly, it is worth asking why the federal government is dispensing taxpayer money to local police departments to purchase equipment that the FAA has so far largely banned out of concern for public safety.”

SJPD could challenge the FAA, but it won't for now

However, experts in privacy and drone law note that taking such a position is not legally absurd.

“It seems like they just goofed and they didn't understand,” Ryan Calo, a law professor at the University of Washington, told Ars. “But it's not an unreasonable position to take. Legally speaking, there has been at least one other person who claimed that the FAA could not regulate drones in defining aircraft, which is what the FAA can regulate.”

Calo outlined the 2011 case of Raphael Pirker, who used a small drone to film above New York City as part of a TV commercial. The FAA wasn’t amused, and it fined Pirker $10,000, but he successfully challenged the fine in a case before the National Transportation Safety Board. That case will likely be appealed to the District of Columbia Court of Appeals, where Calo noted that he expects the FAA to prevail, as courts typically grant wide latitude to such agencies.

“This is currently a gray area because there is no specific regulation concerning unmanned aircraft systems,” said Brendan Schulman, a New York-based attorney who represents Pirker. “The FAA has previously relied upon a 2007 policy statement to assert that specific authorization is required for the use of a drone, but that policy was deemed nonbinding by the judge in the Pirker case which is currently on appeal. More recently, the FAA has interpreted a 2012 statute to the same end, but that interpretation appears to contradict the text and intent of the statute.”

But the SJPD has not explicitly stated that it is relying on a Pirker-style argument, nor that it wishes to challenge the FAA.

“Situations that threaten public safety”

Curiously, the SJPD’s August 5 statement outlines numerous additional situations in which the drone would be used—providing far more scenarios than what its own officers discussed internally.

“SJPD intends to use the [unmanned aerial system, or UAS] primarily to access potential explosive devices and avoid exposing police bomb squad personnel to possible hazards,” said Albert Morales, a SJPD spokesman. “The UAS can be flown over a device to obtain images that would assist the bomb technicians. Another possible use would be for situations that threaten public safety. These could include dangers such as active shooters, hostage taking, or other such tactical situations where lives might be in immediate danger.”

However, a March 5, 2014 memo from SJPD Special Operations Commander Greg Albin to Chief of Police Larry Esquivel says that he recommends “the Bomb Squad’s usage of the Department’s UAV during bomb investigations when needed due to terrain obstructions to enhance officer and public safety.”

Then there are two complete redacted lines before Albin concludes, “The UAV would be an intelligence-gathering component and would be critical to the safe completion of both missions.”

“Perfectly legal”

Even state legislators have no idea what law enforcement agencies have drones or are attempting to acquire them, which is why some have pushed for a change in the state law.

A bill pending in the California State Senate would require public notice prior to a drone’s use. The bill also requires a warrant for the drone’s use, with some exceptions, including “imminent threat to life," traffic accidents, and the ability to “inspect state parks and wilderness areas for illegal vegetation,” which likely refers to unauthorized marijuana farms.

“That's part of the issue—with that part as well there is no rule in place about how it has to be reported,” Douglas Lorenz, a spokesman for the bill’s assembly author, told Ars. Lorenz's boss, Jeff Gorell, is a Republican state assemblyman representing Ventura County and is also a commander in the United States Navy Reserve.

“What San Jose did was perfectly legal,” Lorenz continued. “They don't have to have a public discussion. They don't have to tell anybody what they're buying right now. That's why we want to have clear state law that defines how they can do this.”

Nicole Ozer, an attorney with the American Civil Liberties Union of Northern California, concurred.

"The SJPD seems to definitely misunderstand some critical issues related to drones and to me that underscores why there should be a public debate so the right kind of information gets out," she told Ars.