San Jose police's new drone prompts privacy concerns

San Jose could soon become the first Bay Area city to deploy a drone for police operations, despite pushback from civil rights groups and legal experts who say the invasive technology infringes on Californians’ right to privacy.

The San Jose Police Department (SJPD) purchased the drone in January without any public debate. In August a researcher with the American Civil Liberties Union (ACLU) uncovered the purchase in city documents, which led to an SJPD apology for not opening the purchase to public debate.

“In hindsight, SJPD should have done a better job of communicating the purpose and acquisition of the Unmanned Aerial System (UAS) device to our community,” the SJPD said in a statement.

The police department is now developing a drone-use policy to present to residents on Dec. 6. Police officials say up to four officers could be trained to operate the drone. Initially, they say, only police department auditors will have access to details on how the drone would be used.

But SJPD Deputy Chief Dave Hober tells Al Jazeera that, in part, the drone would help bomb squad officers look for potential explosive devices and ensure that surrounding areas are clear of people before a bomb is dismantled or detonated. He said the department will “probably train four of its current bomb technicians to operate the drone.”

"We could also use the drone for search and rescue operations, if an active shooter was on the loose, and any other tactical situations where lives might be in immediate danger,” Hober told Al Jazeera, adding that the $7,000 drone was paid for by the city’s general fund, which is mostly made up of taxpayer money. 

In September California Gov. Jerry Brown vetoed AB 1327, a measure that would have required police to obtain a warrant every time it sought to deploy a drone for police operations. The bill also would have required the police and other public agencies to notify the public when a drone was deployed and to destroy any images, footage, or data obtained by the drone. In his veto message, Brown said the bill was too narrow and “could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution.”

The issue worries some residents and civil rights groups.

“Drones are very invasive and San Jose police have a history of improper policing in communities of color and minorities,” said Nicole Ozer, Technology and Civil Liberties Policy Director for the ACLU in Northern California. “Police misconduct and no policies to regulate drone surveillance is a recipe for disaster.”

In September the National Bar Association opened investigations on police brutality in 25 cities, including San Jose. And in 2007 a Santa Clara County civil grand Jury report cited widespread community complaints about racial profiling and harassment by San Jose police officers. 

“Privacy is a fundamental constitutional right in California and residents have a right to not be pursued unnecessarily by law enforcement,” said Santa Clara County Supervisor Joe Simitian, who authored more than 15 privacy-related bills as a state senator from 2004 to 2012.

Critics say the SJPD needs to clearly outline its plan for the drone. “The language is vague and the perception of what else they could use it for will lead to more mistrust between the police and the public,” Ozer said.

University of California, Berkeley Law professor Jonathon Simon says many situations, including one where a firearm is visible or a gunshot is fired, can mean that “lives might be in immediate danger.”

He and others say a gradual shift of objectives for using a drone ­— a situation also called “mission creep” — is very likely.

“Would the police eventually use the drones to monitor political protests or for drug raids?” said Nadia Kayyali, of the Electronic Frontier Foundation, a San Francisco nonprofit organization that defends civil liberties on the Internet. “Drones will have a chilling effect on freedom of speech and other first amendment rights.”

“There is growing pressure on local police departments to keep crimes low, and this will lead to them using drones for patrolling,” says Simon, whose research focuses on police practices and mass incarceration.

Increasing cutbacks to the San Jose police force could compound the situation. According to San Jose city records, during 2008 and 2009 the SJPD had 1,392 officer positions. In 2012-2013, that number went down to 1,109, of which 894 were street-ready.

Drone surveillance has a more profound impact on people who are already feeling discriminated against, critics say.

“It’s really about human dignity,” said Simon. “If you are being discriminated against because of your class, race, gender, and sexual orientation already, your sense of dignity needs to be reaffirmed not degraded even more by intrusive spying techniques.”

The San Francisco Bay Area chapter of the Council on American-Islamic Relations (CAIR), an advocacy and civil rights group, says Muslim communities in San Jose fear surveillance.

“American Muslims are living in fear every day and they worry about their every move being watched by law enforcement,” says Zahra Billoo, executive director of CAIR’s San Francisco chapter, adding that the Bay Area is home to more than 250,000 Muslims. “Often times they (Muslims) don’t even know that they are being surveilled and when they find out, they don’t know how to challenge the system,” Billoo said.

Others point out that undocumented immigrants could also be at risk, especially if the SJPD starts equipping its drone with facial recognition technology.

“Would they be able to identify us from the video and share it with the immigration services?” worries Estelle, 36, an undocumented immigrant who requested anonymity. Estelle fears that she might then be reported to immigration authorities and deported to the Philippines.

Hober said the SJPD will monitor the video and photos from the drone in real time and not record and store the images. However, he says the video transmitted from the drone will not be encrypted, which leaves that data vulnerable to outside access.

“It’s inevitable that police will start patrolling from the skies, so San Jose should be ahead of everyone and set the benchmark for developing policies for drone use,” said Nick Labosky, of the San Jose Neighborhoods Commission, a group that integrates residents’ concerns with the city’s decision-making process.

He sees some benefits to police drones, especially if they help save the lives of officers and innocent people caught up in dangerous situations.

“However, we need a detailed policy for the drone use, one that police can follow and the public can monitor,” Labosky said.

That is why the ACLU is encouraging local governments to develop policies setting clear limitations on police drone use, Ozer says.

Hober said the SJPD will develop an accountability system where police personnel ranked at lieutenant level or higher can authorize the use of the drone for police operations.

“We will log the location, drone pilot’s (operator’s) name, who authorized the use, purpose of the flight, and flight time,” Hober said. But California law enforcement officials currently don’t need warrants to use drones. And only the police department will have access to the data logs, making it difficult for civil rights groups to monitor possible drone misuse.

Consequently, Santa Clara County has started exploring an ordinance that would regulate any surveillance technologies used by San Jose police and the other 14 cities in the county. 

Simitian said a local ordinance should include strict guidelines on how images collected by a police drone can be securely transmitted to police and how long police will keep the data.

“I don’t think that the state should be keeping robust data files on people and I don’t think the 1.8 million residents of Santa Clara County want that either,” Simitian said.

According to a recent ACLU report, “Surveillance carries privacy and free speech threats even if it is conducted solely in public places. This is particularly true when surveillance information is aggregated to build a robust data profile that can reveal much more in combination than any isolated record.”

Ozer says the federal government has moved slowly on developing laws regulating drone use by police departments. He says legislation needs to start at the local level to force states and ultimately the federal government to follow suit.

“There is a lack of will by the federal and state governments to regulate surveillance technology,” Ozer said.