Police Drone Footage Is Off Limits – Unless This Legal Challenge Takes Flight

Government

Police Drone Footage Is Off Limits – Unless This Legal Challenge Takes Flight

The Chula Vista Police Department offers tours of its drones and publishes flight logs, but like many police agencies that use drones, won’t share the actual footage. A lawsuit filed by newspaper La Prensa is challenging that policy.

A drone sits idle at the rooftop of the Chula Vista Police headquarters. / Photo by Adriana Heldiz

The Chula Vista Police Department runs one of the most high-profile and advanced drone-as-first-responder programs in the United States, and officials have prided themselves on being transparent and trustworthy to the community.

The department’s website lists statistics for how many calls for service the drones have responded to, what types of calls they most frequently respond to and the flight path of each drone launch. “If anybody wants information, they want a tour, we open our doors to allow them in,” the drone program’s captain, Don Redmond, said in a previous interview with VOSD in April.

But one thing the department refuses to allow the public to see is the actual footage captured by the drones.

The department has denied public access to the footage, claiming an exemption under California Public Records Act, but one local newspaper is challenging that claim, and taking the city to court over the disclosure of the drone footage. In April, La Prensa San Diego, a bilingual Latino newspaper, filed suit against Chula Vista for the release of drone footage captured in March.

The outcome of the case could have ramifications for other police departments looking to build similar programs. If La Prensa is successful, the cameras attached to drones will effectively belong to everyone, not just officers.

But that outcome could introduce another concern: the privacy of those captured on video by the drones. Residents unconnected to the crime or service call that a drone was launched to respond to could be captured in the footage, too, for anyone who requests it to view.

The balancing act between privacy and transparency will soon be in a judge’s hands, said Rachel Levinson-Waldman, deputy director of the Brennan Center’s Liberty & National Security Program at NYU Law.

“Ultimately, it will be up to a court to sort of make a determination about what the appropriate balance is, taking into account the transparency function that the CPRA serves, relevant and legitimate privacy considerations and how to best serve the public interest overall.”

Brian Hofer, executive director of a police reform advocacy group Secure Justice, said the fact that releasing the footage could risk the privacy of Chula Vista residents means that their privacy has already been violated.

“If these people are on the footage and have a reasonable expectation of privacy, why were they captured on the camera in the first place? We’re sort of doing it backwards by saying, ‘Oh we can’t release this footage of people, they have a privacy interest.’ Well, that privacy interest existed from the very beginning. Why did you go capture them? They never should have been monitored in the first place?”

Joseph Harper, a UAS pilot contractor, monitors the path of a Chula Vista Police drone as it makes its way to a car accident on the I-5 freeway. / Photo by Adriana Heldiz

But steps can be taken to mitigate privacy concerns related to the release of footage, Hofer said, like blurring individuals’ faces or stripping metadata from the footage.

Chula Vista is not alone in refusing to release the footage captured by drones. In fact, police agencies throughout San Diego have a similar stance of the release of drone footage, rarely giving it up or other information about drone activities.

If a judge rules against La Prensa in the Superior Court, the case would likely go to appeals court and even the California Supreme Court, where the decision would set a legal precedent for the entire state.

“If CVPD is responsibly using the drone program to increase public safety, the public should know, but if CVPD is abusing the program, the public should know that too,” La Prensa’s publisher, Art Castañares, told Voice of San Diego. “What is never acceptable is giving unelected officials the discretion to decide what the public can and cannot know.”

The Chula Vista Police Department declined to comment on the legal case.

Glen Googins, Chula Vista’s city attorney, said in an emailed statement that he felt the lawsuit “was unfortunate and unnecessary.”

“I had indicated to Mr. Castañares that while the city’s initial response for drone camera footage was a denial, my office was, in fact, still analyzing his request and that we were working with the chief’s team to evaluate what footage might ultimately be disclosable,” Googins said.

Googins said his office and Chula Vista Chief of Police Roxana Kennedy planned to offer an opportunity for Castañares to tour the drone program and ask questions when they received notification of the lawsuit.

“Now, in the context of litigation, having a constructive exchange over what information should or shouldn’t be public, and how best to balance competing interests, becomes much more difficult,” Googins said.

Castañares, however, interpreted the city’s denial of his drone footage request as a denial, not an opening for future discussion.

“Any comment now from their city attorney is simply an attempt to cover for their lack of transparency and public accountability. All we seek is the release of public documents; no more, no less,” he said.

The Police Department’s drone program has been heralded by some as a model in its field, elevating the city into the role of global consultant, giving tours and advice to police and media from outside San Diego. Members of the original team that launched the program now work for companies that help integrate drones into other markets.

Since 2018, the drones have been allowed to fly farther and farther away from their launch sites. In March, the Federal Aviation Administration gave police permission to respond to 911 calls with drones anywhere in the city — about a dozen times a day, or more than 300 times in that month alone.

One of the drone models the department uses regularly, the DJI Matrice 300, is equipped with a 23x optical zoom camera lens and a thermal imaging camera. Another drone model, the Skydio 2, can fly out of sight of drone pilots, inside and around buildings and through small spaces.

Officers have wide discretion for when to launch a drone. When asked about the parameters of a drone launch, Redmond said in an email: “Any emergency/call for service where the UAS can assist.” That includes disturbances, welfare checks, vandalism and graffiti, domestic abuse, assaults, robberies and traffic collisions, according to service call summaries posted by the department online.

In March, police also dispatched drones to respond to a person sleeping on the sidewalk. There were several calls for a “mental subject” and even a “crazed person dancing in traffic.” Not all drone launches are necessarily associated with crimes. Last month, the largest portion of drones flights were in response to disturbance calls.

For every launch, the drone captures video footage along its entire flight path, which is uploaded onto an online evidence storage site and kept for up to a year unless connected to a specific crime or investigation, in which case the footage could be stored longer. Redmond also noted that the cameras on drones are turned upward on the flight back to the launch site, so it’s not facing and recording the ground below.

The department’s privacy policy prohibits recording footage “where a person would have a reasonable expectation of privacy, such as private backyards or inside private buildings, except where authorized by a warrant issued by a judge or in emergency situations.” But the drone program, by definition, was created in part to respond to emergencies. And although Redmond has acknowledged that drones sometimes fly over residents’ backyards along their flight paths, he declined to say whether someone in their backyard would have a reasonable expectation of privacy.

When New York’s police department started expanding its use of drones in 2018, the New York chapter of the ACLU called for the department to delete footage that drones captured after 24 hours, arguing that the “longer the NYPD keeps the footage, and the more footage there is, the greater the chances are that it will be misused.” The department’s then retention policy was to keep footage for 30 days.

The Chula Vista Police Department retains all footage captured by drones for a minimum of 90 days. Drones have responded to almost 1,500 service calls this year alone, according to Chula Vista’s website. The ACLU of San Diego & Imperial Counties met with Chula Vista officials in 2016 to present “general concerns about the use of drones by public agencies” but “has not offered any analysis on the city’s drone policy or program,” Edward Sifuentes, the local ACLU chapter’s media spokesman, said.

The California Public Records Act requires all public agencies, or agencies that receive state funding, to release records “concerning the conduct of the people’s business” to the public, unless the records fall under one of the law’s allowable exemptions.

When denying La Prensa’s initial request, Chula Vista argued that the footage was part of an investigation and therefore not releasable to the public. But some California public records attorneys disagree, arguing that public records law requires a law enforcement agency to prove that the footage for each flight is connected to a specific crime or investigation in order to be withheld under state law.

David Snyder, an attorney and executive director of the First Amendment Coalition, a nonprofit defending free speech and access to information, pointed to a recent decision from the California Supreme Court that could have implications for La Prensa’s case against Chula Vista.

In 2015, the ACLU of Southern California and the Electronic Frontier Foundation, a digital privacy nonprofit, sought to compel Los Angeles County to release data collected by the local police departments’ automated license plate reader system.

When the case reached the California Supreme Court, the justices determined that the collection of large amounts of license plate data did not constitute an investigation in and of itself, and that the court’s obligation to narrowly interpret exemptions in the California Public Records Act meant that data not connected to a specific crime, when anonymized, could be released to the public.

“This stands to the idea that broad collection of information doesn’t fall into this exemption for investigative records, and I think that could be an issue here,” Snyder said.

For all footage collected by the police department’s drones to be exempt, Snyder said, the department would have to prove that the footage from each drone flight is connected to a crime or investigation. Because of this, and the fact that not every call for service involving the drone is connected to a crime, Snyder said it’s possible that La Prensa’s case could compel the department to release at least some of the footage captured by its drones.

“Any time the state increases its ability to surveil the public, it increases the potential for violations, so I think the public has a really heightened interest in understanding how these devices are being used and whether they are being of use, and in order to do that, the public I think has a right to know what these drones are seeing when they’re going on their missions,” Snyder said.

Other laws could come into play in this case, too, said Kelly Aviles, a public records law attorney in California. That includes two landmark police transparency laws from 2019 that opened up access to investigative and disciplinary records of officers and video footage of critical incidents.

The two laws, Senate Bill 1421 and Assembly Bill 748, require that law enforcement agencies release records from instances where an officer fired their gun, or was found to have lied or committed sexual assault against a member of the public, as well as video recordings of shootings or other serious uses of force.

Assembly Bill 748, specifically, has been applied widely to body-worn camera footage. The Chula Vista Police Department treats footage captured by drones in a similar manner to body-worn camera footage. The department’s drone policy states: “Like all police records, video and photos may also be subject to additional release under the same rules and restrictions as BWC Video and other items of evidence.”

It’s possible that footage captured by the police department’s drones could be disclosable under these laws, Aviles said, but the extended time frames the law allows for active investigations related to the records could mean that the records are not yet disclosable. But they could be in the future.

Beyond the La Prensa case is the greater discussion around the capabilities of surveillance technology and whether its use is appropriate, Aviles said, and that will remain even after the court’s decision.

“All of these things, new forms of policing, new technology that enable police to capture wide amounts of data, not necessarily because they think the data demonstrates that there was a crime, [but] because they’re capturing data that they could use later … I think it’s something that we are just starting to really understand the implications of and are starting to have to try to deal with it,” Aviles said.

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