It is now legal for law enforcement in North Dakota to fly drones armed with everything from Tasers to tear gas thanks to a last-minute push by a pro-police lobbyist.
With all the concern over the militarization of police in the past year, no one noticed that the state became the first in the union to allow police to equip drones with “less than lethal” weapons. House Bill 1328 wasn’t drafted that way, but then a lobbyist representing law enforcement—tight with a booming drone industry—got his hands on it.
The bill’s stated intent was to require police to obtain a search warrant from a judge in order to use a drone to search for criminal evidence. In fact, the original draft of Representative Rick Becker’s bill would have banned all weapons on police drones.
Then Bruce Burkett of the North Dakota Peace Officer’s Association was allowed by the state house committee to amend HB 1328 and limit the prohibition only to lethal weapons. “Less than lethal” weapons like rubber bullets, pepper spray, tear gas, sound cannons, and Tasers are therefore permitted on police drones.
Becker, the bill’s Republican sponsor, said he had to live with it.
“This is one I’m not in full agreement with. I wish it was any weapon,” he said at a hearing in March. “In my opinion there should be a nice, red line: Drones should not be weaponized. Period.”
Even “less than lethal” weapons can kill though. At least 39 people have been killed by police Tasers in 2015 so far, according to The Guardian. Bean bags, rubber bullets, and flying tear gas canisters have also maimed, if not killed, in the U.S. and abroad.
“When you’re not on the ground, and you’re making decisions, you’re sort of separate,” Becker said in March. “Depersonalized.”
Drones have been in use for decades by the military, but their high prices have prevented police departments from obtaining them until recently. Money’s no problem for the the Grand Forks County Sheriff’s Department, though: A California manufacturer loaned them two drones.
Grand Forks County Sheriff Bob Rost said his department’s drones are only equipped with cameras and he doesn’t think he should need a warrant to go snooping.
“It was a bad bill to start with,” Rost told The Daily Beast. “We just thought the whole thing was ridiculous.”
Rost said he needs to use drones for surveillance in order to obtain a warrant in the first place.
“If you have nothing to hide, you have nothing to fear,” Becker remembered opponents like Rost saying.
Yet the sheriff’s department is hiding a full accounting of how many drone missions they’ve flown since 2012. Records requests by The Daily Beast were initially denied by the sheriff because they would “cost a fortune,” and were only handed over after an appeal to the state’s attorney general’s office.
The sheriff and lobbyists assured lawmakers that drones would only be used in non-criminal situations, like the search for a missing person or to photograph an accident scene. What they didn’t mention was the 2011 arrest of Rodney Brossart, a cattle thief who was caught by a Department of Homeland Security drone.
When a few cows wandered onto his land, Brossart refused to take them back to their owner, his neighbor. The neighbor called the police and the situation turned into a 16-hour standoff. Fearful of entering his ranch without knowing where Brossart was, police asked Homeland Security to redirect a Predator searching the border with Canada.
The drone meant to find drug smugglers instead found Brossart—on his own property—and he was arrested.
Law enforcement wasn’t the only one who disapproved of the legislation. A representative from the North Dakota Department of Commerce, the vice president of an economic development group, the founder of a drone company, and the director of the University of North Dakota’s drone major program all testified against the bill.
Why would a bunch of business types want to stop something like warrants for drones?
“I think when you’re trying to stimulate an industry in your state, you don’t want things that would potentially have a chilling effect on [drone] manufacturers,” said Al Frazier, a Grand Forks sheriff’s deputy who pilots the drones.
Organizations like the Association for Unmanned Vehicle Systems International track legislation, especially any laws that appear to limit drone “development,” according to Keith Lund of the Grand Forks Regional Economic Development Corporation.
“Requiring a search warrant for surveillance is ‘restricting development’?” asked Rep. Gary Paur, a Republican, at a hearing.
“It’s really all about the commercial development, which is where all of this is heading,” Lund replied. “If [a law] is somehow limiting commercial, law enforcement development... that is a negative in terms of companies looking and investing in opportunities in the state of North Dakota,” Lund said.
In other words, limit civil liberties so Big Drone can spread its wings.
Drones in North Dakota are a profitable enterprise in a state hit hard by the oil bust. Companies that market machines for agricultural and commercial use have been popping up in industrial parks on the outskirts of Grand Forks for the better part of the last three years. The university, one of the city’s largest employers, even offers a four-year degree in drones. The Air Force has partnered with the private sector to create a drone research and development park, too.
In January, on a ribbon of video screen that wraps its way around UND’s Ralph Engelstad Arena, the bubble nose of an RQ-4 Global Hawk, the Predator drone, glided silently past the backdrop of a clear blue sky. That image—an advertisement for Northrop Grumman—appeared during the second intermission of a sold-out hockey game.
“This is the first year they’ve advertised here,” a friend said to me.
***
Perhaps Brossart’s arrest was included in the 401 drone operations the FAA says were undertaken by the Grand Forks County Sheriff’s Department in the past three years. But that number doesn’t square with the 21 missions flown by the agency in the same time period, all detailed in documents obtained by The Daily Beast through open-records requests.
In addition to the flawed comparison to helicopters and the milquetoast descriptions of drone use, police continually cited Federal Aviation Administration rules that require law enforcement organizations authorized to operate drones to notify the FAA when the devices are deployed as a reason why HB 1328 was unnecessary.
This also appears to be an incomplete analysis.
According to documents obtained by MuckRock, the FAA notes 401 drone “operations” performed by the Grand Forks County Sheriff’s Department from 2012 to September 2014, while Rost and Frazier maintain just 21 missions have taken place. Those 401 operations noted by the FAA have resulted in 80.5 hours of flights, a number that can’t be independently verified because a lawyer representing the sheriff’s department did not include duration of flights for the 21 missions detailed in response to an open-records request from The Daily Beast. (HB 1328 requires police to retain data, including flight duration, for five years after it is collected.)
Rost and Frazier did not reply to multiple requests for comment regarding the discrepancy between the FAA’s numbers and their own, and the FAA hasn’t provided an explanation for how it defines “operations.”
Similar to those who have supported the NSA’s massive data collection program, Rost and others repeatedly fell back to an argument that was cited untold times over the last two years as Becker fought for his bill.
“We don’t make a practice of snooping on people,” Rost said recently.
However, Rost’s statement was followed by an admission that the sheriff expects drones to be used in criminal investigations in the near future.
Rost argued against the bill on the basis that police would in good faith obtain warrants if they decided to use drones for surveillance, and that judges be allowed to “do their job.”
“I understand that judges regulate whether you would have to get a warrant, but there’s nothing currently in the law setting perimeters for UAS [unmanned aircraft systems],” a North Dakota lawmaker told Rost at a February hearing. “What’s wrong with having something in law?”
Verbally diminishing the power of drones and what they would be used for in the bill’s hearings was the second of a two-part strategy from law enforcement. The first was a public relations push that included months’ worth of op-eds in the state’s two largest newspapers, the Grand Forks Herald and the Fargo Forum. Usually penned by Frazier, the UND aviation professor who also pilots two of the drones used by the Grand Forks County Sheriff’s Department, the public face of police drones has at times been different from comments made outside the media.
“To read Rep. Becker’s bill, you would think that these would be highly effective surveillance tools that could be put up over locations for persistent surveillances and violate people’s constitutional rights,” Frazier told the Herald in January. “And the reality is none of that is correct."
Compare that to Frazier’s remarks at a 2011 UAS conference attended by many members of law enforcement. Sarah Nelson, a journalist and Bismarck native who has studied police use of drones, was also there. She testified in a March hearing on HB 1328, and told the committee about Frazier’s comments at the 2011 conference, which stand in stark contrast to his printed words.
“[Frazier] spoke openly about the potential use of unmanned systems in North Dakota,” at the conference, Nelson said. “The list included the deployment of a hovering drone that was ‘Not audible or visible to people below in order to collect real time intelligence video.’”
Grand Forks is probably the only place in the country where you’ll find advertisements for Predator drones, the operators of which are trained and stationed at the nearby Air Force base. There, past the airport a few miles outside the western edge of the city, the landscape gives way to the prairie that covers the vast middle of North Dakota. But before civilization is left behind on a westward route, the city, its politicians, the base, and the powerful interests of the drone program at the University of North Dakota are adding a futuristic appendage: Grand Sky.
Billed as a UAS research and development facility, Grand Sky will combine all the benefits of private entrepreneurship and government capital. Tenants there will have access to some of the the Air Force base’s facilities, and drone companies are clamoring to get their spots. On its website, Grand Sky is billed as an opportunity to “Create History Where the Future is Wide Open.”
It is certainly that: The residents of Grand Forks, like those throughout the state who have taken a laissez-faire attitude to oil companies reaping millions from North Dakota ground, appear concerned primarily with the economic benefits of drone technology. Becker, the Republican state legislator who sponsored HB 1328, said heartburn over individual privacy, constitutional rights, and, on a larger scale, the ethics of killing people a half a world away by wielding a joystick, doesn’t seem to exist for many in the state.
Part of the reason for this, Frazier argued, is a compliance committee keeps police use of drones in check. A body with no legal authority, the committee tracks and reviews how police use their drones and discusses possible privacy concerns. Frazier and others in law enforcement—as well as representatives from the private sector and those from UND—cited the committee watchdog role as yet another reason why HB 1328 was unnecessary.
But the group isn’t exactly comprised of a diverse cross section of political thought. Of the committee’s 18 members, six are from UND, which has a vested interest in promoting drone use. Three are members of local government, including the city planner and an assistant state’s attorney. And the rest are either current or former members of law enforcement and emergency services.
Frazier said that the sheriff’s department had nothing to do with the makeup of the group, which was created by charter. The committee is not a “rubber stamp,” he added. And besides, there simply hasn’t been much public outcry over police use of drones, or really any interest in tracking how police use them.
Drones are overwhelmingly seen as a good thing in North Dakota, which is perhaps why few noticed when HB 1328 passed with a clause allowing them to be armed with non-lethal weapons.
***
“I agree completely with the idea that there should be public oversight of a public asset, but to a great degree disagree with the idea that the public is overly concerned with it,” Frazier said. “I think the media is making a big deal out of something that isn’t a big deal.”
It may be that the sheriff’s use of drones is completely innocuous, that there is some kind of technical verbiage-related mixup that would explain the discrepancy between the FAA’s numbers and those provided by Frazier and Rost. It also may be that the pair had nothing to do with the non-lethal exception included in HB 1328, which they say is the case. Both said they pulled out of any negotiations over the bill’s language, thinking it was “doomed,” Rost said.
It wasn’t, thanks to Becker, who succeeded in creating a check against law enforcement with the warrant requirement, but failed to prevent police from arming drones that are increasingly filling North Dakota skies.
In attempting to convince legislators to pass HB 1328, Nelson, the journalist and Bismarck native, said it wasn’t distrust of police that prompted the bill to be crafted, but a democratic duty to maintain trust in government.
“When grappling with how to regulate powerful technologies, it’s a common practice of both law enforcement and the larger intelligence community to say that technologies are being used on very bad people in very extreme cases. This is an effective strategy because the public sees themselves as vastly different from those bad people,” she said in March. “In response to this argument, I would urge the committee to remember that liberty is eroded at the fringes.”
_____________________________________________________________
New Law Permits North Dakota Cop Drones To Fire Bean Bag Rounds From The Sky
To pass new warrant requirement, lawmaker compromised to allow less-than-lethals.
republished below in full unedited for informational, educational, and research purposes:
Legal experts are very concerned that a new North Dakota law which allows law enforcement drones to be armed with so-called less-than-lethal weapons—including stun guns and beanbag rounds—could be highly problematic. The law, however, explicitly forbids lethal weapons. Previous drafts of the bill specifically included prohibitions on non-lethal weapons, language that was later removed.
Among other reasons, such weapons have been shown that they can, in fact, kill people. According to research by The Guardian, 39 Americans have died this year alone at the hands of police wielding a Taser. Meanwhile, the Associated Press reported Wednesday that more than 20 North American cities are pursuing large silicone-based projectiles as yet another alternative weapon.
North Dakota is believed to be the first state in the union to allow such weapons aboard state and local police drones.
The Peace Garden State has become something of a hub for drone research and development. It offers a bachelor’s degree in "Unmanned Aircraft Systems" at the University of North Dakota, while the state’s Air National Guard unit hosts a number of MQ-1 Predator drones. The state also hosts the country’s only Federal Aviation Administration-approved drone testing site that can fly both during the day and at night.
"It really takes a very subtle situational awareness to understand when it's ok to use less-than-lethal,"Ryan Calo, a law professor and drone expert at the University of Washington, told Ars.
"The problem is that it will be used too often because the perception that the stakes are not very high, because sometimes less-than-lethal can be lethal," he said. "So it strikes me that putting less-than-lethals on drones creates a double remove: the officer doesn't have situational awareness, and they don't know whether a conversation could de-escalate [the situation]. That's one thing, and second, the fact that it's less-than-lethals will mean that [police will] hesitate less and will use it more often."
"I hear a lot of ideas about drones, and this is one of the worst," Calo added.
Brian Owsley, a former federal judge and current law professor at the University of North Texas, expressed similar concerns.
"Drones, like stingrays [or cell-site simulators], were designed for military applications and are now being sold by manufacturers for use by local law enforcement because they need to expand their market," he told Ars by e-mail.
"I question in what circumstance there would be a need for a use of force administered by a drone," Owsley said. "I think that people may file claims regarding excessive force, especially be targeted for non-lethal force when the recipient is not even near anyone to cause them harm. There could arguably be an Eighth Amendment excessive force claim."
Get a warrant
The law, known as House Bill 1328, which took effect earlier this month, imposes a significant pro-privacy victory: requiring that police and sheriff’s deputies get a warrant when deploying a drone for surveillance.
Owsley noted that this warrant requirement was "great."
"That is the type of standard that is necessary for such surveillance," he added. "I also think it is really a step in the right direction to require police to retain the various data regarding drone flights, but I would like to see that this data was made public in an easily accessible manner."
However, in order to get the measure through the state’s legislative body, the bill’s author told Ars that he had to do a little horse trading with the state law enforcement lobby, the North Dakota Peace Officers’ Association, which had strongly lobbied against it.
Rep. Rick Becker told Ars that he had initially proposed the bill in 2013 (the state’s legislative body only meets every two years) but was defeated by the same group.
"This time the law enforcement lobby as well as the university group were more inclined to support it," he said.
"I submitted with prohibition of any weapons," he continued. "The law enforcement lobby offered an amendment and said that if the amendments were added, they would not oppose. The committee accepted amendments and I didn't fight them because I wanted the bill to pass at least to require warrants. The law says that law enforcement can't use drones weaponized with lethal weapons. But in 2017 when I get back, I will introduce a bill to also include non-lethal."
Neither the North Dakota Peace Officers’ Association, nor the International Association of Chiefs of Police, immediately responded to Ars’ request for comment.
Becker, who is also a plastic surgeon, said that while he doesn’t know of any North Dakota law enforcement agencies that have immediate plans to arm their aircraft with such weapons, made one more salient point.
"The gist of why I don't want the non-lethals allowed is the decision to use force on another citizen, the normal morals and process of thinking goes out the window when it's like you're playing a videogame," he said. "It's dehumanized, it's depersonalized."
