Alongside growth in the use of unmanned aircraft systems (UAS), commonly referred to as drones, for both commercial and recreational purposes, law enforcement agencies' use of this technology has been increasing as well.¹ One estimate from 2020 indicates that more than 1,500 state and local public safety agencies (over 70% of which work in law enforcement) had acquired drones at that time—an increase of more than 500 agencies from the estimated number in 2018.² Drones are one of many technologies that agencies are increasingly employing, and these devices are used for a variety of purposes, from gathering intelligence and evidence to providing for remote communication and operational support.

The use of drones by law enforcement agencies raises questions across a range of topics. Some observers may question the scope and effectiveness of laws and policies governing law enforcement agencies' use of this technology. Others may examine how drone use may simultaneously enhance law enforcement agencies' work and potentially infringe upon individuals' privacy and civil liberties. Some concerns about drone use have manifested in state-level actions to prohibit or bound law enforcement agencies' use of UAS.³

This report focuses on the uses of UAS specifically for law enforcement purposes.⁴ It provides an overview of federal law enforcement agencies' policies and use of this technology. It also discusses considerations for policymakers debating whether or how to affect federal, state, and local law enforcement agencies' use of UAS.

How UAS May Be Used by Federal Law Enforcement Agencies

Law enforcement agencies—including federal law enforcement—may use UAS for a variety of purposes.⁸ For instance, they may use drones to gather intelligence prior to conducting an operation. This can reportedly help with identifying where a suspect may be hiding or with visualizing the layout of a building before officers enter. Drones can also be used to support an operation that is underway; for example, by live streaming an operation to monitor where a suspect exited a building or to illuminate where a suspect might have discarded evidence when officers cannot see all the possibilities from the ground. Drones can also be used to collect photo evidence in instances where access may be hindered or dangerous. They can aid in reconstructing certain scenes such as those involving traffic accidents, fires or explosives, or crime scenes where an aerial view can provide an additional perspective. Drones can serve as a force multiplier by helping officers search for suspects or missing persons, because UAS can survey more ground at a faster pace than officers.

Some observers note that drones can help enhance officer safety in a number of ways, such as by providing visuals on dangerous suspects or collecting evidence from hazardous crime scenes (e.g., those involving explosives). They can also provide for remote communication—such as with a hidden suspect or one who has taken hostages—and distance may provide a valuable safety buffer to officers, potential victims, and others nearby.

Generally, federal law does not direct or prohibit specific tools and technologies—such as UAS—used by law enforcement agencies to aid investigations. However, there are a number of policies that govern their use, as discussed below.

Presidential Memorandum on UAS

A 2015 presidential memorandum, Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems (hereinafter, "2015 presidential memorandum on UAS"), placed certain requirements on executive branch departments and agencies that use UAS. It notes that "as with information collected by the Federal Government using any technology, where UAS is the platform for collection, information must be collected, used, retained, and disseminated consistent with the Constitution, Federal law, and other applicable regulations and policies."¹³ While this directive is not specific to federal law enforcement, it encompasses federal law enforcement agencies using UAS. The directives in the memorandum include the following:¹⁴

• Protecting privacy. Before deploying new UAS technology, and every three years thereafter, agencies shall examine their policies and procedures with respect to the collection, use, retention, and dissemination of information obtained from UAS to ensure the protection of privacy, civil rights, and civil liberties.
• Protecting civil rights and civil liberties. Agencies shall ensure UAS activities are conducted in accordance with the Constitution, applicable laws, executive orders, and presidential directives, and that there are processes in place to address complaints with respect to privacy, civil rights, and civil liberties. Agencies shall ensure their data collection using UAS technology does not violate the First Amendment or antidiscrimination laws.
• Ensuring accountability. Agencies shall have UAS oversight policies and procedures consistent with agency policies and regulations. They shall have rules of conduct and training for individuals working on UAS programs and have policies for oversight of individuals with access to sensitive information collected with UAS. They shall also confirm that UAS data sharing policies conform to laws, policies, and regulations. Agencies shall ensure they have policies to authorize UAS use in response to support requests from federal, state, local, tribal, or territorial government operations. They shall also ensure that any recipients of grant funding to purchase or use UAS have policies to safeguard privacy, civil rights, and civil liberties.
• Promoting transparency. Without compromising law enforcement or national security, agencies shall provide public notice about the location of their authorized UAS operations; provide public information about their UAS operations and how they are safeguarding privacy, civil rights, and civil liberties; and provide an annual summary report of their UAS operations, including information on UAS mission types and assistance provided to other agencies or federal, state, local, tribal, or territorial governments.

Selected Federal Law Enforcement Policies on Using UAS

Federal law enforcement agencies across a number of departments may rely on UAS technology to aid in carrying out their law enforcement duties. This section provides examples from the Department of Justice (DOJ) and Department of Homeland Security (DHS) of policies directing law enforcement use of UAS. These examples highlight the scope of existing policies that guide law enforcement activities involving drones.

Department of Justice (DOJ) Use of UAS

A number of DOJ's components (Federal Bureau of Investigation [FBI]; Drug Enforcement Administration [DEA]; Bureau of Alcohol, Tobacco, Firearms, and Explosives [ATF]; U.S. Marshals Service [USMS]; and Bureau of Prisons [BOP]) use UAS in support of its law enforcement and national security missions.¹⁵ DOJ issued the Department of Justice Policy on the Use of Unmanned Aircraft Systems, which guides the department's use of this technology.¹⁶ The policy requires DOJ components to adhere to certain requirements when using UAS, including the following:

• Legal compliance. DOJ use of UAS must comply with constitutional provisions and federal law and regulations, including antidiscrimination laws and policies.
• Scope. UAS may only be used in connection with "properly authorized investigations and activities," which are defined by statutory authorities; rules and regulations; and Attorney General Guidelines, policies, and guidance.
• Approval. DOJ components must ensure UAS operations are approved at an "appropriate level," based on particular operational and tactical needs of that component, and these approval levels must in turn be approved by the Deputy Attorney General.
• Airspace access. UAS operations must comply with FAA regulations, and DOJ components must work with the FAA to develop plans to provide necessary support for air traffic and airspace management.
• Training. The Deputy Attorney General is responsible for approving minimum UAS training standards, including relevant legal and policy requirements, and DOJ components may implement additional requirements tailored to their needs. DOJ employees operating UAS must be certified as having completed the training requirements.
• Reporting. The Deputy Attorney General is responsible for issuing requirements for department components to track and report information on UAS operations, including operations in which DOJ components are providing UAS support to other federal, state, local, tribal, or territorial agencies as well as operations in which DOJ components receive such support from other agencies. Annual minimum reporting requirements include descriptions of mission categories involving UAS, data on component support provided to or received from other agencies (and information on its purpose), and the privacy review conducted for the components' UAS activities.
• Stakeholder engagement. DOJ components may engage with stakeholders, including law enforcement and other community stakeholders, and in doing so must ensure the protection of law enforcement, national security, and other protected information.
• Privacy and civil liberties protections. DOJ components are responsible for assessing potential intrusiveness and effects on privacy and civil liberties before determining whether or how to use cameras and other sensors associated with UAS. Privacy officials are responsible for making these assessments prior to their use. Components are also responsible for addressing privacy and civil liberties complaints.
• Data retention. Information collected using UAS that may contain personally identifiable information may not be retained for longer than 180 days unless it is necessary for an authorized purpose or is maintained in a system of records pursuant to the Privacy Act.¹⁷ Any retained data must be protected in compliance with federal laws, regulations, and policies.
• Procurement. Any procurement of information technology associated with UAS constituent parts must comply with relevant laws, policies, and regulations. Additionally, department components providing grants to state, local, tribal, or territorial agencies to purchase or use UAS must verify that grant recipients have procedures in place to safeguard privacy and civil liberties and mitigate cybersecurity risks.
• Implementation. DOJ components seeking to use UAS must implement DOJ's standards and requirements with respect to the technology and must issue component-specific UAS policies consistent with the Department of Justice Policy on the Use of Unmanned Aircraft Systems.

This policy only applies to DOJ components and not other federal, state, local, tribal, or territorial law enforcement agencies that may be using drones. However, if DOJ components are working with other agencies on joint investigations or task forces, the DOJ components—and possibly by extension, their partners—would need to adhere to the DOJ policies.

UAS Working Group

DOJ has a UAS Working Group,¹⁸ which is a forum to discuss and coordinate UAS-related matters. It is chaired by the Office of Legal Policy (OLP). OLP consults with the working group on a number of activities, including advising the Deputy Attorney General on UAS training standards, UAS tracking and reporting requirements, and recommended changes or improvements to the department's UAS policy. In supporting DOJ's UAS policy, OLP also reviews DOJ components' proposals with respect to the approval level at which UAS operations are approved within a component as well as components' implementation of DOJ's UAS policy. Further, OLP supports DOJ annual reporting on UAS operations as well as reporting on UAS procurement and training. It also shares best practices on UAS use across the department and with law enforcement partners.

DOJ UAS Activities

DOJ's UAS programs are not centralized at the department level; rather, they are managed by each component employing a UAS program. For instance, the FBI's UAS program is managed by its Critical Incident Response Group, which is responsible for, among other things, managing the FBI's mobile and aviation surveillance programs (which encompasses its UAS program).¹⁹

DOJ publishes an annual report on its UAS activities that outlines how it complies with the requirements of the 2015 presidential memorandum on UAS.²⁰ In its most recent report, on FY2022 UAS activities, DOJ notes that five components (FBI, DEA, ATF, USMS, and BOP) use UAS to carry out their law enforcement and national security missions. Specifically, in FY2022 these agencies conducted 1,447 UAS deployments²¹ for purposes including "fire and explosive scene investigation; pre-warrant surveillance; photography; officer safety; execution of search warrants; communications tower inspections; criminal investigations; counterterrorism; counterintelligence; counter weapons of mass destruction; fugitive apprehension; and judicial security."²²

Department of Homeland Security (DHS) Use of UAS

Like DOJ, DHS activities involving UAS are managed at the agency level rather than being centralized at the department level. DHS does not have a department-wide policy on law enforcement use of UAS, though it has developed best practices for protecting privacy, civil rights, and civil liberties in UAS programs.²³ These best practices were developed by the DHS Unmanned Aircraft Systems Privacy, Civil Rights and Civil Liberties Working Group to inform DHS and its federal, state, and local government partners and grantees about UAS program policies respecting privacy, civil rights, and civil liberties.²⁴ And, like other executive branch components, DHS is subject to the directives outlined in the 2015 presidential memorandum on UAS.

DHS UAS Activities

U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) uses Small Unmanned Aircraft Systems, or small drones, among its suite of surveillance technologies to support its investigations.²⁵ DHS notes that it complies with FAA regulations that apply to commercial and recreational small UAS users. DHS further notes that any video recordings collected through the use of its small drones are to be used only for official purposes in compliance with Homeland Security Investigations Directive 19-01, and not in violation of the First Amendment or in a manner that targets individuals based on race, color, religion, sex, sexual orientation, gender identity, or national origin.²⁶ Any use of video recordings collected by these small drones must also be approved by an HSI supervisor in coordination with ICE counsel.²⁷

U.S. Customs and Border Protection (CBP) uses a variety of aircraft, including small and large UAS, for border surveillance and law enforcement purposes. CBP notes that they may be equipped with video, radar, and sensor technologies.²⁸ Specifically, when CBP uses UAS for law enforcement purposes, they support operations conducted by other DHS components such as ICE and other federal law enforcement agencies such as the FBI or DEA. In these cases, requests for UAS support are reviewed by "the respective [U.S. Border Patrol] sector Chief Patrol Agent responsible for the geographic area in which operations are to be conducted for authorization."²⁹

Policy Considerations Surrounding Law Enforcement Use of UAS

There is no specific federal legislative framework that governs federal law enforcement use of drones. Rather, there are laws and policies broadly governing law enforcement investigations and intelligence gathering; and, there are laws and policies broadly governing drone operations. In addition, there are policies, but not laws, governing the specific use of drones by federal law enforcement.

Some observers argue that drone use can greatly enhance public safety and national security—including using them as first responders.³⁰ Others have raised concerns that law enforcement use of drones could infringe upon individuals' privacy or could chill free speech—such as in situations where law enforcement flies drones over First Amendment-protected activities.³¹ Policymakers may debate the tradeoffs. If Congress debates law enforcement use of specific technologies such as UAS, it may consider how any boundaries might apply. For example, while many tools and technologies used by law enforcement agencies to aid investigations have not been specifically permitted or prohibited by law, Congress has legislated on and conducted oversight of certain technologies that could affect individual privacy. With electronic surveillance, for instance, investigators must generally obtain a warrant to conduct wiretaps³²; however, exceptions exist for emergency situations that may involve death or serious injury, threaten national security, or involve conspiracies of organized crime.³³ Policymakers may consider these issues as they conduct oversight or debate legislation on law enforcement use of drones.

Oversight of Law Enforcement Use of Drones

Congress could consider oversight of federal law enforcement use of UAS through a variety of mechanisms, including hearings and directives to oversight entities such as the Government Accountability Office (GAO) or various department and agency Inspectors General. Among the issues that could receive attention, policymakers might opt to examine agency adherence to the 2015 presidential memorandum on UAS or to their department or agency-specific policy guidance, such as the Department of Justice Policy on the Use of Unmanned Aircraft Systems.³⁴

Policymakers might also opt to explore how law enforcement use of drones intersects with other technologies, such as facial recognition technology (FRT). Questions have been raised about the extent to which drones may be able to support FRT systems onboard as well as which videos and images captured by UAS may be used in law enforcement agencies' FRT programs.³⁵ Some of the concerns raised about law enforcement use of drones, including privacy risks, have also been raised about law enforcement use of other technologies such as FRT.³⁶ Some jurisdictions have responded to these concerns by placing restrictions on drones being equipped with FRT.³⁷

Influencing Law Enforcement Use of Drones

Policymakers can legislate directly on federal law enforcement agencies' ability to utilize certain technologies such as drones, as well as specify under which circumstances federal law enforcement may use these tools. They can also direct federal departments and agencies to develop or rely on established guidelines surrounding the technologies, require them to use technology that meets specified standards, and conduct broad oversight of law enforcement agencies' use of UAS.

Congress can also influence state, local, and tribal law enforcement agencies' use of UAS technologies through the provision or withholding of grant funding. Programs such as the Edward Byrne Memorial Justice Assistance Grant (JAG) program³⁸ and the Community Oriented Policing Services (COPS) program³⁹ have been used to incentivize certain activities by state and local law enforcement and could similarly be leveraged to support or restrict agencies' use of UAS. Congress could also further specify when, and under what circumstances, grant programs may be used to support law enforcement use of UAS. However, even when supporting a drone program may be considered as generally falling under the umbrella of a statutorily allowable use of funds, federal agencies may prohibit the use of funds for UAS in some cases. For instance, DOJ's Bureau of Justice Assistance (BJA)—which administers the JAG program (a program which allows grant recipients to use funds for equipment and supplies, among other purpose areas)—notes that currently, "the use of BJA grant funds for unmanned aircraft systems (UAS), including unmanned aircraft vehicles (UAV), and all accompanying accessories to support UAS or UAV is unallowable."⁴⁰

In addition to providing grants for state and local law enforcement use of UAS, grantmaking entities have provided guidance to agencies implementing these programs. For instance, DOJ's COPS Office, along with the Police Executive Research Forum and the UAS Working Group, developed a roadmap for state, local, tribal, and territorial law enforcement implementing an effective UAS program, as well as strategies for these agencies on community engagement and education on their UAS programs. Among other things, they recommend strategies for the planning, implementation, and operational phases to address concerns about privacy and the purpose and details of drone use.⁴¹ Policymakers could consider the federal role in providing guidance to state and local entities, and whether any adjustments are warranted.