Police drones raise fears over personal privacy

As police services in Canada and the United States begin to use drones as a tool to investigate crime, privacy concerns become part of the debate.

Identification Constable Marc Sharpe of the Ontario Provincial Police in Kenora, Ont., built a drone, that flew its first mission in 2007.

By: Jennifer Quinn Investigative News reporter

A garage in Kenora, packed with model planes and the flotsam of family life, is where one of the Ontario Provincial Police’s latest — and perhaps most controversial — tools for fighting crime was born.

The first two attempts failed. But with his third, Identification Const. Marc Sharpe, a forensic identification officer — whose off-duty passion is building and flying model airplanes — launched a new, high-tech approach to fighting crime in Canada.

He had built a drone.

“Our little program is the first in North America to get federal approval,” Sharpe said of his creation, which flew its first mission in 2007. “It was a very modest program, but it was still the first one.”

Forget multimillion-dollar aircraft like the Predator. The machines flown by some Canadian police departments, like the OPP, may cost about the same as a cruiser, and can be almost as easy to operate as a Crown Vic.

But for civil libertarians and privacy advocates, drones — also known as unmanned aerial vehicles, or UAVs — have far-reaching and potentially worrisome, implications. Law enforcement agencies like the OPP, Royal Canadian Mounted Police and Halton Regional Police may be using theirs for benign purposes like accident reconstructions and crime scene surveys, but what could the future hold?

“We know that technology is basically neutral. It can be used for good and bad, and we know there are very good applications,” said Michelle Chibba, the director of policy at Ontario’s Office of the Information and Privacy Commissioner. But, she added, “We’ve got to be aware of the unintended consequences to privacy when developing those technologies.”

“It’s definitely an issue we’ll be watching,” agreed Abby Deshman, the director of public safety for the Canadian Civil Liberties Union. “It raises some serious privacy questions. There are still some fundamental gaps in the framework. Where are these being used? Are they going to be used for general surveillance?”

Sharpe’s answer to that is no — at least, not by his force. The OPP’s first homemade UAV was replaced by a high-tech, helicopter-esque creation in 2009, but that doesn’t mean they have the capability — or, importantly, the permission — for covert surveillance.

When the OPP launches their UAVs, they do so under very strict conditions: they can go no higher than 120 metres, must stay within the operator’s sight and can’t fly over people not involved in incidents. The OPP in Kenora, where Sharpe is based, use their drone mainly for photographing crime scenes.

And the OPP knows that Transport Canada, which regulates the use of UAVs, is watching.

“All it takes is one department to get some goofy system and do something stupid,” Sharpe said. “I don’t want the cowboy departments getting something or doing something that’s dumb — that will affect all of us.”

Drones have varied applications. The British media reported they were used during London’s high-security 2012 Olympics, and in other places they have tracked wildlife, investigated disaster zones and searched for missing people.

The drones currently used by Canadian law enforcement agencies are small and have limited range. Police here aren’t flying multimillion-dollar aircraft like the Predator — best known for its missions over faraway conflict zones, such as Iraq and Afghanistan — but their colleagues to the south are.

The U.S. Department of Homeland Security has a flock of Predators, stationed in Arizona, Texas, Florida and North Dakota, which patrol the country’s northern and southwestern borders. These drones also fly for their federal colleagues: a 2012 report by Homeland Security said agencies ranging from the Secret Service and FBI to the U.S. Forest Service and Federal Emergency Management Agency have used the Predators.

Even the smallest of law enforcement agencies have benefited from the drone’s proximity.

Sheriff Kelly Janke heads the five-officer Nelson County Sheriff’s Department, which is headquartered in the town of Lakota, N.D., population 780. The county sits just to the south of the Manitoba border and is largely rural.

In 2011, Janke’s department was looking for missing cattle and was trying to execute a search warrant at a ranch when things got heated. His officers had to back off. But Homeland Security’s Predator was nearby and the drone’s operators heard the police chatter on the radio.

They contacted the Nelson County officers and asked: Could they help?

The Predator flew over the ranch to determine whether the men involved in the standoff were armed. The intelligence the drone gathered allowed officers to resolve the situation safely and make arrests. And though he said the Predator’s involvement worried some, such as the American Civil Liberties Union — and is often cited as the first case where an unmanned drone was used to arrest a U.S. citizen — Janke defended its use.

“We weren’t looking for crimes that were being committed — we were using it for safety concerns and safety reasons only,” Janke said in an interview. “We’re the good guys here. We try to use any tool that’s available to keep people safe and preserve life.

“How do we stay ahead of the game here by restricting law enforcement tools that can be used in good ways?”

Good ways are fine. But it’s the issue of mission creep, or function creep, which really concerns privacy experts.

“A lot of these technologies . . . they start out in a military, defence, environment. And then before you know it, this technology starts to move to the civilian realm,” the Ontario Privacy Commission’s Chibba said. “We have to raise and acknowledge the issue of privacy once it comes into the civilian realm, because often it’s not given that thought.”

David Fraser, a Halifax-based internet, technology and privacy lawyer, agreed: “When it comes to the design of these things, it comes from the military. And on the battlefield, privacy is not relevant. You don’t care if you’re offending your enemy’s sensibilities.”

Fraser, somewhat jokingly, said drones have a “creepy factor.” (Even the word drone is loaded, generally associated with the theatre of war and is considered almost pejorative by some.) The more “automated and disembodied” a technology is, the more Orwellian it feels, he suggested.

But Fraser also said part of the creepiness factor comes down to how unexpected the surveillance is. Walking into a bank, for example, one would probably expect to be caught on closed-circuit television cameras. “If you think, ‘This is reasonable,’ you’re not creeped out by it,” Fraser said.

“With drones, with UAVs, it’s even more creepy because you don’t know when you’re under surveillance,” he said. “With a drone that can be 10,000, 20,000, 30,000 feet in the air, that drone can be watching you . . . and you have no idea that’s the case.”

In Canada, people are protected from unreasonable search and seizure by Section Eightof the Charter of Rights and Freedoms. At the moment, Canadian drones are only looking at areas that would likely be considered public by the courts.

So if law enforcement wants to gather information about someone when they’re in a place where that person could reasonably expect to have privacy, then police need a warrant.

“Privacy is the essence of fundamental freedoms,” said Chantal Bernier, Assistant Privacy Commissioner of Canada. “It is the space that allows us to be free.”

So in order to safeguard the privacy of Canadians, Bernier’s department analyzes emerging technologies for privacy implications — and their lab is interested in drones.

She said that no federal department, which would include the RCMP, has asked for permission to use drones to gather personal information, and that she would not be inclined to allow it.

“I simply do not see the case in Canada for such surveillance,” Bernier said. “It has never been made to us and if it was made to us, we would analyze it according to our strict criteria.”

Back in northern Ontario, the OPP’s drone flies two or three times a month, doing police work such as taking images of crime scenes or investigating traffic accidents. One UAV flew over the wreckage of the Algo Centre Mall in Elliott Lake to assess the damage and structural integrity.

While the drone makes some aspects of policing technically easier, it doesn’t change the legality of what they’re doing.

“We can’t do anything different with this technology than what we do every day,” Sharpe said. “If we need a warrant to get that information, then we need a warrant. It doesn’t matter how we get it. Section Eight of the Charter does not change.”