A bill in the Oregon Legislature would make it easier for law enforcement to use drones. Senate Bill 238 passed in the state house with bipartisan votes and is now being considered in the senate. It would give law enforcement agencies more authority to use drones without a warrant. Many law enforcement officers have testified that it would make their work more efficient and more safe. Opponents of the bill have concerns about its constitutionality and the future of automated policing more broadly.
Michael Abrams, the policy counsel at ACLU of Oregon, opposes the bill.
Aaron Schmautz is the president of the Portland Police Association and the Oregon Coalition of Police & Sheriffs, who support the bill. We’ll hear from both sides to learn more.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. A bill in the Oregon Legislature would make it easier for law enforcement to use drones. Senate Bill 238 passed in the state House with bipartisan support. It’s now being considered in the state Senate. It would give law enforcement agencies more authority to use drones without a warrant. Many officers have testified that it would make their work more efficient and more safe. Opponents of the bill have concerns about its constitutionality and the future of automated policing more broadly.
Michael Abrams is the policy counsel at the ACLU of Oregon. He opposes the bill. Aaron Schmautz is the president of the Portland Police Association, that’s the union of rank and file PPB officers. He’s also the president of the Oregon Coalition of Police & Sheriffs. He supports the bill. Welcome to you both.
Aaron Schmautz: Thank you.
Michael Abrams: Thank you. Pleasure to be here.
Miller: Sergeant Schmautz, I want to start with you. What do police in Portland and around the state currently use drones for?
Schmautz: So currently, there’s two different worlds, because the city of Portland has had a more restrictive approach to drones as we’ve navigated this situation. But drones effectively have been used, and really automation has been used, to get eyes into places that are either unsafe or impossible to get police officers into as we’re navigating complex circumstances.
So in Portland, we’ve currently just used robots and then we’ve added drones in the last couple of years. When you’re in a situation where maybe you don’t know the status of somebody … Are they injured, are they not? Are they armed, are they not? Obviously, if you introduce a human being into those circumstances, the odds for some kind of force encounter may be higher. So sometimes somebody’s in a higher place, drones can get into those places. Drone technology has continued to get better, so their ability to get into tight spaces has improved, but ultimately it’s been a life saving measure to ensure that we understand what we’re dealing with when we’re going to interact with somebody.
Miller: So if I understand correctly – and largely you’re talking here about Portland, which, as you say, is a little bit more restrictive than some other cities or maybe some other counties – the idea is that there’d be a police officer somewhere looking at a video screen and the video feed would be from the camera on the drone?
Schmautz: Yeah, so all automation is still, and I believe within this bill, still managed by a human being cognition – you have somebody controlling that drone. These are not like unmanned and unmonitored. They’re controlled by a human being and flown by a human being. Drones themselves, there’s FAA regulations. You have to, in order to deploy a drone, have eyeballs on the drone as it goes into the sky to ensure there’s no interaction with other manned aircraft. And then as it flies, a human being is controlling it.
Miller: What other uses have you been hearing about outside of Portland? I mean, how are other police departments or sheriff’s offices using drones currently?
Schmautz: So you’re seeing expansion into circumstances where you may not have a police officer who’s able to be deployed, but you may have an unknown circumstance in which you’re trying to identify what emergency service is necessary, such as there’s somebody laying on the ground. You’re unsure, are they even still there? Sometimes these calls are holding for a long time. In a world in which we don’t have enough police officers or maybe a circumstance may not require a police officer, having one person being able to get to many different places in an area to identify what the needs are for first responders, this serves to buoy our ability to respond where we’re needed and not respond where we’re not.
Miller: Michael Abrams, what Oregon laws are currently in place governing the use of drones?
Abrams: A number of laws already exist that we think adequately allow law enforcement to use drones in all other situations, really all the situations the sergeant just alluded to. I mean, he’s talking about how drones are currently used under existing law. Essentially, law enforcement can use drones with a warrant, as part of routine law enforcement practices, as long as they get a warrant to do so. They can use a drone without a warrant for search and rescue operations, with certain restrictions under existing law to make sure it’s focused on just search and rescue and not for something else ...
Miller: What about emergency situations?
Abrams: Exactly. And I think the really central situation, and a lot of what the sergeant said gets to this … they’re also allowed to use drones without a warrant in emergencies or what’s known as exigent circumstances. So that’s a situation where, say an officer might be in danger, or a member of the public is in danger, or an individual is threatening someone with a gun. In a situation like that, it would almost certainly be impracticable, if not impossible, to get a warrant in time to effectively intervene. And if law enforcement believes a drone is the right response, they can go ahead and do so.
Of course, there is a judicial check on that. There’s established case law that sort of governs exigent circumstances. But I think what’s really notable is all of those really positive examples we’re hearing from law enforcement are happening under existing law, often due to the exigent circumstances exception that covers these emergencies.
Miller: OK, all of that is a status quo. What would change, Michael, under this bill?
Abrams: Yes, so SB 238 would very dramatically alter that status quo. Like I said, for most situations that aren’t those emergencies, law enforcement has to get a warrant. This bill strips that warrant requirement entirely. No longer would law enforcement have to get a warrant before using a drone if they’re deploying it as what’s known as “drones as first responders,” sort of replacing that initial responding officer to scope out a 911 call. Could be an emergency, could be a kid bouncing a ball against the garage door or some kind of noise complaint. This law would allow law enforcement to send a drone without a warrant, without that determination that it is an emergency, if it’s in response to a call. So that’s a lot of situations currently that aren’t covered.
The other big change the law would make is for any public safety emergency where damage to property or injury to people could occur, they can also send a drone without a warrant in that situation. We think that’s very vaguely defined and would cover virtually any protests. So right now, there is that more careful analysis law enforcement would have to go through if they want to send a drone to a protest or a public gathering, this bill would make it much, much easier and really give law enforcement discretion. That’s the biggest change that takes the judge out of the equation and there’s no longer that judicial check.
Miller: Well, let’s imagine that there is some protest. Is your concern about the video data that be collected, the surveillance from the video? Is that the main problem that you see here?
Abrams: Honestly, there are several. That is one of the leading ones, that if the police do start routinely surveilling protests using this new authority, we are very concerned that there’ll be just tons of video data out there with differing policies – each law enforcement department can have their own policy. The law doesn’t really require any minimum standards for data retention or anything like that. So we’re very concerned about that data just being used by law enforcement. Unfortunately, history has shown that data is often abused and to violate folks’ rights.
Miller: Would it be against Oregon law if there were a police officer holding a video camera at some protest? I mean, is that to you different than a drone with a video camera?
Abrams: No, no, and that’s the thing. Similar laws would apply there. And we have seen cases … for example, law enforcement live streaming protests. They’ve been involved in litigation or the live streaming of protests because that was violating the rights of protesters, sort of revealing their identities for no clear law enforcement purpose. So law enforcement is already doing that kind of thing. Often, they need to get a warrant, or in a situation of a protest, that sort of emergency situation, they can. But then there is this case law that that sort of limits what they can do and we can sort of hold them accountable. And I think that really makes the point that the ACLU had to get involved after a rights violation had occurred.
So the danger here is when you take the warrant requirement away, you’re incentivizing law enforcement to use drones more and more, and push the limits to the point where they are maybe violating these laws. And it is like that officer live streaming protesters for no legitimate criminal investigatory reason.
Miller: Aaron Schmautz, you were talking about the ways in which drones are currently being used. What’s an example of a situation where you wish they could be used, but they can’t right now because of existing Oregon law?
Schmautz: I did mention a few things and we just heard, there are some circumstances where we don’t have police officers to respond. Again, you’re trying to triage the best place to send people. Being able to send a drone to get eyes on … and again, it’s a police officer identifying and watching, but hey, this person is no longer here, this emergency no longer exists.
But even more, as we’re discussing some free speech events, this is really the big difficulty from my perspective, listening to what I was just listening to. I mean, we’re kind of paralyzed from the standpoint that sometimes police being on scene is perceived as escalatory. Very often in free speech events, you’ll have a handful of people engaging in criminal conduct and a lot of people not. So there’s a lot of complexity in Oregon’s laws.
We had this issue too with body cameras as it relates to free speech events. The body camera is a fisheye kind of inanimate object that captures a lot of different things, but you may be trying to target the specific actions of one person who’s standing in front of you. I just think using technology to lessen the likelihood of negative interactions between law enforcement and the community is kind of a no-brainer from my perspective. And the reality is, you can litigate later how to use video if you did capture it, how to navigate that video, but all you’re having conversation about is just what to do with data, as opposed to what to do with negative interactions or physical interactions between law enforcement and the community.
So it does seem a little bit peculiar to me that we’re hearing that there’s concerns about the way that police interact physically with the public. And then when we come up with ways to do it in a way that we won’t have to do that, and instead, we can just see what’s going on and understand how to better deploy ourselves, we have an issue with that as well ...
Miller: Michael, let me give you a chance to [respond]. I should say, Sergeant Schmautz, that Michael Abrams has been nodding as you’ve been talking a lot there. And just to sharpen the point that he made – although it’s already pretty sharp – what I heard is this: “Hey, ACLU and others, you complain about what you see as heavy-handed police tactics, sometimes during protests. And here we are, we’re trying to not bring in police with their weapons, unless we really need to, and we have this technology that lets us have a non-police presence but an awareness of what’s happening. And yet again, you’re complaining and saying ‘don’t do this.’”
That’s my version, the short version of what Aaron just said. Michael, what’s your response?
Abrams: Yes, thank you. And I was nodding. I do appreciate so much of what Sergeant Schmautz just said because drones do provide this really interesting and exciting opportunity to improve interactions between police and the public. I think there are clear examples of it avoiding negative interactions, of de-escalating situations.
The problem is that’s all happening already and our concern, again, is why does the law need to change so dramatically right now? Drone technology is already being deployed to de-escalate situations. The exigent circumstances exception we think covers really all of these troubling situations and I don’t see why the current law is in any way an obstacle to all of those really clear benefits the sergeant discussed. So our concern, again, is about this massive expansion, or really delegation of authority from the legislature and away from the courts, to law enforcement itself to decide when to use drones.
And I would add too, community really wasn’t consulted throughout this process. This bill was essentially a placeholder study bill up until March 28, when an amendment was introduced to turn it into this drone expansion bill. Public hearing was held the following Monday, so that was a Friday to a Monday. So very quickly this process moved to the state Senate and community stakeholders were not really included. Between local governments, or civil rights organizations, or organizations fighting for racial equality, or organizations concerned about policing, all the different groups were not involved. So we think, to the degree we can, capture those benefits. Everyone needs to be at the table.
Miller: Well, Sergeant Schmautz, let me go back to you because I’m not sure in retrospect that I got a full answer to my last question. What are you saying that you would like to be able to do as police officers in Oregon that you cannot now do with drones?
Schmautz: It is the response to unknown circumstances, because to the point that we’re hearing here is that right now you have to have those exigent circumstances that are very specific. I think what we’re expanding into is the unknown, to a circumstance where you have information that you may or may not need police services. So drones can be used to triage or to identify the best place to deploy limited resources, in an environment where we don’t have enough police officers.
I know that Gresham and some other agencies are doing just that. They’re sending their drones out and they wish to continue to expand, to send them out to calls where you may not know what services are needed or you may not know what the circumstances are. You may have an emergency circumstance [where] you already could use it.
But again, it’s moving towards technology because the laws were written at a time where technology didn’t exist. I think that there’s concerns about the grayness of the current policy or the current law, so we want to expand it, along with the expansion of technology. It’s no different than any other technology. When laws are written, you don’t yet know what all can be done and then once you start identifying new uses, you want to make sure that the law is expanding with it.
I would just conclude also that the judiciary branch is not well suited for real-time police action. Again, we’re dealing in a world that is moving at 100 miles an hour and the judiciary moves very, very slowly. So trying to get a warrant or to move towards things where you might not know what you need to do, it could cost lives, it could put police officers in peril, it could put people in peril. Again we’re sending police officers to places they may not be needed when we have limited resources. So having one person operating a drone, being able to get to multiple places quickly, not driving, not dealing with traffic, not having to go from place to place but being able to identify the best way to deploy our resources, seems like an obvious next step.
Miller: Michael Abrams, state law for body worn cameras, as I understand it, requires that officers notify people when a conversation is being recorded. And I should say, that gets to a question of audio, perhaps, which is maybe different from a drone, which is less likely, I think … although maybe microphones are getting better to capture audio. But to me, the point remains here that they have to say it’s being recorded, unless that notification compromises safety or an investigation.
Are there rules about similar notifications for drones? Do officers have to say, “Attention, we’re the police up here controlling this drone. We are watching you”?
Abrams: Unfortunately, not to my knowledge. This actually came up at the public hearing on the bill yesterday, where one of the members of the House Judiciary Committee asked a law enforcement representative essentially that question. And the response was, effectively, we like to alert people to the existence of the drone, they’re maybe generally marked, maybe they have sirens sometimes, but there are no hard and fast rules under state law at this point. The bill is silent on that. That is definitely one of our concerns – are people going to know, whether they’re at a protest, or maybe they’re in the backyard and suddenly a drone is flying overhead, is this their neighbor who’s been harassing them for a while? Or is this law enforcement coming in for some unknown reason? Or is this just their kid playing with a drone?
We don’t know and that’s a big, big concern with this bill. And I think that relates to what the sergeant was just saying, that I appreciate the need to address unknown circumstances and as this technology develops, we want to do that. But again, it begs the question, why such a dramatic shift right now? This law was crafted back in 2013, so I do think the technology has been around. At the time, the bill sort of imposed these restrictions. And I think before we completely let this out of Pandora’s box, we need to be very careful that communities are actually comfortable with it, that local governments are able to afford it and it’s actually going to lead to these benefits.
Miller: I want to look a little bit to the future in the time that we have left. Sergeant Schmautz, you were talking about the fact that right now humans are required to be controlling these. What role do you think AI should play in this conversation going forward?
Schmautz: The city of Portland has a pretty perfunctory ban on AI as it relates to facial recognition. I mean, this is a conversation I think we probably need to have, as far as, just what do we want to do? It’s interesting, you look around the world, Europe in general is under surveillance constantly. They have cameras everywhere and there’s a lot of places in America where there are a lot of cameras. I mean, stores, and I know TriMet has a really robust video camera system. The Portland Police Bureau is not allowed to use most of that.
AI is continuing to develop. Its capability, as opposed to our use of said capability, I think we’re still working towards that. But to the point being made, I think that’s a conversation we need to have with the community, what they’re comfortable with. Obviously, there are enforcement benefits, identifying who’s committing crimes, finding missing people, all those things. But the infrastructure is expensive, it’s complicated and I don’t think we’ve gotten really to that conversation yet. I could be convinced in really probably either direction.
I just think that right now, the reason this conversation is sped up so much is because every single police department in the metro area, and really in the state, is struggling with staffing, and we’re not being able to keep up with getting people and help where it needs to go. We’re seeing the expansion of other response models, but all of that requires identifying where we need to go. So I think that is why, from a cost-benefit analysis, one drone and one operator can probably clear way more calls than one police officer who has to drive a car from place to place to find out what’s going on. So I think that’s probably why you’re seeing this quick expansion, and also why I think the AI conversation is probably one that the ACLU and police organizations will continue to have to identify that cost-benefit analysis.
Miller: Michael Abrams, same question to you before we say goodbye. I mean, what do you see as the big AI-related criminal justice issues that we should be talking about now?
Abrams: Hmm. That is a big question to answer.
Miller: [Laughs] Yeah. You’ve got four seconds.
Abrams: Four seconds …
Miller: No, you have a minute or two.
Abrams: I’ll do my best. Especially when we talk about AI and drones … And I do want to say at the outset here, we have to recognize the moment we’re in, of unprecedented federal aggression, of truly fascist executive orders and attempts to militarize our law enforcement like we’ve never seen before by the Trump administration, using every tool available, including AI, and a lot of of different novel uses of computer databases to target people. And we think at a time like that, it makes absolutely no sense to be expanding law enforcement’s surveillance technology, simply to resolve the officer shortage problem.
We think that’s a real conversation to be had, but I don’t think it’s fair to just say we should be replacing live officers with these drones simply because there are some economic benefits. That’s a very complicated conversation about what community is gonna want – do we want to replace live officers in that way? How are we gonna do that? And yes, are they gonna be using artificial intelligence? Are they going to be scanning people’s faces as they fly through town in response to a 911 call? That’s a real concern about how this brand new AI technology, mostly unregulated, is being used to potentially target people. And that all needs to be, I think, carefully studied and addressed.
Again, there are clear benefits here, but if we’re not careful, we’re going to be ringing a bell that just simply can’t be unrung.
Miller: Michael Abrams and Aaron Schmautz, thanks very much.
Abrams: Thank you.
Schmautz: Thank you.
Miller: Michael Abrams is the policy counsel at the ACLU of Oregon. Aaron Schmautz is a sergeant in the Portland Police Bureau. He’s the president of the Portland Police Association and the president of the Oregon Coalition of Police and Sheriffs.
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