March 7, 2019

The Division of Criminal Justice opposes S.B. No. 870, An Act Concerning the Use of Drones by Law Enforcement, and respectfully recommends the Committee take NO ACTION on this bill. In the alternative, we would recommend that the Committee initiate a thorough study of the issues involved not only with law enforcement use of unmanned aircraft (i.e., drones) but by all entities and individuals.

The fundamental problem with this bill is obvious from its title. The bill proposes to impose restrictions and conditions on the use of drones by law enforcement, but not by anyone else. The bill essentially prohibits legal activity by the police that everyone else can engage in. For example, a real estate agent could send the drone up as part of his or her business and see whatever they want, but the police officer could not. Adding to this absurdity, if the real estate agent gives the video to the police, it could be used as evidence. Could a private citizen start his or her own drone business in a high-crime area and fly at certain high crime times of day (e.g. drug dealing) and then sell the video on the open market, including to police?

The bill also ignores the reality that much of what its proponents are apparently attempting to address is already covered by case law. American jurisprudence has produced volumes of case law governing – and in most cases restricting – the means through which the police or another law enforcement agency can undertake search and seizure of evidence. The law already in place, both through statute and caselaw, is built upon the foundation of the Fourth Amendment to the United States Constitution and the corresponding Declaration of Rights incorporated in Article First of the Connecticut Constitution. A thorough review and examination of the existing laws, case law and constitutional provisions must be carefully undertaken before any legislation along the lines of S.B. No. 870 is even considered.

This bill could prevent law enforcement from utilizing a drone in a situation that might protect or promote public safety but that the very same activity by anyone else is fine. While we are not aware of any instances where law enforcement has abused the use of a drone, we can cite instances where the devices have been put to use to protect the public. One example, which is not law enforcement per se, is the fire department that used a drone for an aerial view of a brush fire burning near a shed where explosives were legally stored. The firefighters were able to determine that it was, in fact, safe to battle the fire without fear of an explosion. Another example of where a drone could be useful is a hostage situation or standoff where the aerial view provided by the device would allow law enforcement to better assess the situation and to map a strategy for addressing the matter in a fashion safer for both the police and the subject.

Drones are but the latest in a long and continued string of technological advances affecting not only law enforcement but also virtually every aspect of our daily lives. It was not that long ago that the portable telephone was a novelty that very few could afford to have or even desired. Cell phones now are a part of everyday life to the point where traditional landlines are quickly becoming a thing of the past. The same holds for other forms of technology particular to law enforcement and the criminal justice system, such as DNA analysis. At the same time, we have also learned that being too quick to accept new technology does not always have the best result in the end. Consider that at one time scientific hair analysis was considered leading edge technology only to have been essentially discredited in recent years.

The Division of Criminal Justice recognizes the privacy and other concerns that have prompted legislation such as S.B. No. 870. We stand willing to work with others to thoroughly examine these concerns and consider appropriate legislation. As such, we would recommend that a better approach to examining issues relating to the use of drones would be to have the matter examined by a group composed of those most involved. This approach was utilized successfully in the recent past to study issues related to the eyewitness identification of suspects in criminal investigations. In fact, the Division would reiterate our proposal from recent years to establish an ongoing committee comprised of law enforcement, legal professionals and others to continually assess technology and its use and impact. We would hope this would be an ongoing endeavor and not be seen as a one-time study. We would note that the Program Review and Investigations Committee did, in fact, undertake a study of drones a few years back. However, despite that study, the issue remains as evidenced by S.B. No. 870.

In conclusion, the Division respectfully recommends the Committee take NO ACTION on S.B. No. 870, or in the alternative, a JOINT FAVORABLE SUBSTITUTE REPORT to establish an ongoing task force or committee to examine and advise the General Assembly on the gamut of technology issues related to law enforcement and criminal justice. We thank the Committee for affording this opportunity to provide input on this matter and would be happy to provide any additional information the Committee might require or to answer any questions that you might have.