By Cathryn L. Claussen, J.D., Washington State University
Fear of terrorism and related violence has led sports event organizers to consider adding drones (unmanned aerial systems) to their other security measures. Drones are attractive security tools because of their maneuverability and capability to monitor spectators and areas with high resolution cameras and other technology. However, their use presents concerns about spectator privacy which include both the intrusiveness of surveillance technology carried by drones and the potential uses of the information gleaned. For example, captured video images might be used to access information from databases of health or financial records, or technology might be used to intercept cell phone communications made during the event. Spectators reasonably assume some level of privacy in these areas, and would not have any way of knowing that they were subjects of a technological search.
Drones were reportedly used at the Olympic Games in London and Sochi, as well as at soccer’s 2013 Confederations Cup and the 2014 World Cup in Brazil (McCann, 2012; Skillen, 2013; Ayed, 2014). Drones were acquired but ultimately not used for security at the 2011 and 2012 Super Bowl games (Tongish, 2011; Koebler, 2012). Drones most likely have not been used for security in American sports settings because after 9/11 the Federal Aviation Administration (FAA) established “no-fly zones” over venues hosting MLB, NFL, NCAA Division I football games, and some motor speedway events (FAA, 2009). College athletics conferences are incorporating those FAA rules into their event security policies. For example, the Pac-12 Conference prohibits drone use on football game days unless specifically authorized by the Pac-12 or law enforcement agencies, and requires authorized users to comply with the FAA sports event regulations (Pac-12, 2014). Nevertheless, following the 2013 Boston Marathon bombing, Dr. Louis Marciani, Director of the National Center for Spectator Sports Safety and Security, recommended exploring the use of drones for security at open-venue types of sports events (States News Service, 2013).
When security and privacy concerns are in tension, the law must attempt to strike a balance between the two, recognizing that both are important. In 2013, a LinkedIn poll asked respondents which they thought was more important — security or privacy. Forty-four percent chose privacy (Goel, 2013). In a Pew Research poll, sixty-two percent of respondents believed the government should search for potential terrorist threats even if citizens lose some privacy (Cohen, 2013). Drawing that line is the job of the courts and legislatures.
In the United States, four areas of the law are of primary importance to privacy and drones: the Fourth Amendment to the U.S. Constitution, the tort of invasion of privacy, and federal and state legislation specific to drones. This article does not address the private tort claim of invasion of privacy because it has not yet been litigated with respect to drones inasmuch as there has been very little private commercial use as of yet. This tort will likely play a role once the FAA approves a greater number of private commercial uses of drones.
The Fourth Amendment’s prohibition on unreasonable searches and seizures is based on a fundamental right to freedom from governmental intrusion into an individual’s private affairs. Typically, law enforcement searches must meet the high standard of showing probable cause in order to prevent unreasonable individual or mass suspicionless dragnet types of searches. However, probable cause is not required for law enforcement use of information gained that is visible in open fields or public view or that is in plain view (Arizona v. Hicks, 1987; Coolidge v. New Hampshire, 1971; California v. Ciraolo, 1986; Dow Chemical v. United States, 1986; Florida v. Riley, 1989; U.S. v. Knotts, 1983; U.S. v. Jones, 2012) . So far, federal and state legislation has been aimed at regulating law enforcement uses of drones, and the impact of such laws on sports event security would involve a Fourth Amendment analysis.
At American sports events, law enforcement personnel are often used to conduct or provide back-up support for mass suspicionless searches of spectators. In these situations, a potential probable cause requirement (or relevant exception) has been disrupted by the rationale relied upon by two courts (the 11th Circuit and the California Court of Appeal) that sports spectators have impliedly consented to be searched when they entered the venue if notice of a potential search had been provided (Johnston v. Tampa Sports Authority, 2008; Sheehan v. San Francisco 49er’s; 2007). This rationale is contrary to a string of decisions involving spectators at rock concerts who entered after objecting to being searched. In those cases, the courts ruled that the 4th Amendment requires express consent or affirmative consenting acts to establish genuine consent to be searched (Collier v. Miller, 1976; Gaioni v. Folmar, 1978; Jacobsen v. City of Seattle, 1983; State of Iowa v. Carter, 1978; Stroeber v. Commission Veteran’s Auditorium, 1977; Wheaton v. Hagan, 1977). In the context of security at sports events, drones enable seeing more than what is visible in plain view to the naked eye and more than what used to be visible in open fields and public places, and could facilitate database comparisons of an individual’s life data. In future litigation, the greater level of intrusiveness made possible with drone surveillance may add force to the rationale used in the rock concert cases.
Because the judicial system is necessarily reactive and lags behind technology development, legislators have proposed statutes to address privacy issues related to the use of drones. Four such bills were introduced in the United States Congress in 2013, none of which has of yet been enacted. The Preserving Freedom from Unwarranted Surveillance Act of 2013 prohibits governmental use of drones without a search warrant except when used for border protection, or where there are exigent circumstances (imminent danger to life, risk of serious property damage, escape of a suspect, or imminent destruction of evidence) or a high risk of terrorist attack (H.R. 972, 2013; S. 1016, 2013). The Preserving American Privacy Act of 2013 prevents the government’s use of drones except when there is a warrant, court order, or prior written consent, or for use in border control, handling a life-threatening emergency, or confronting a conspiracy for an organized crime or a threat to national security (H.R. 637, 2013). The Drone Aircraft Privacy and Transparency Act of 2013 prohibits the warrantless use of drones unless there are exigent circumstances (imminent danger, search and rescue needs, or high risk of terrorist attack) (H.R. 2868, 2013). The Safeguarding Privacy and Fostering Aerospace Innovation Act of 2013 prohibits drone surveillance without prior written consent, unless there is a life-threatening emergency or the target is in a place of public use where surveillance would not be highly offensive to a reasonable person (S. 1057, 2013). It is possible that the latter clause could be interpreted as applicable to a sports venue.
Forty-five states have proposed drone-related statutes, thirteen of which have been enacted (Bohm, 2014). All the state bills require a search warrant/probable cause for drone surveillance by law enforcement, and all list exceptions that are similar to the exceptions found in the federal bills. In 2013, the majority of state bills and statutes had not yet moved beyond law enforcement considerations to begin to address private commercial use issues (Bohm, 2014).
A statutory exception for “high risk of terrorist threat” might be considered to apply to sports mega-events, and an exception for “places of public use where the use of drones is not highly offensive to a reasonable person” might be applicable to all sorts of sports venues. Typically, the statutes specify that the “high risk of terrorist threat” determination is to be made by the U.S. Department of Homeland Security, so a sport manager need not assume that a large-scale sports event is at high risk simply because it is large-scale.
The statutory exception for a “place of public use” does not necessarily require Homeland Security input. Relevant questions here would focus on the appropriate scope of the search and subsequent uses of any acquired data. For example, to what kinds of uses of drone security would the “public place” exception apply? Capture of facial images? Of typical body movements? Of cell phone conversations or text messages? A sport manager should set surveillance parameters that respect spectators’ reasonable expectations of privacy in acts engaged in while in public places.
Because privacy concerns have not yet been adequately addressed due to inexplicit case law and the embryonic state of legislative bills and statutes, sport managers should embrace a cautious approach to policy development with regard to the use of drones for spectator security. It would be wise to provide advance notice to spectators of planned drone surveillance in order to lay the grounds for an implied consent defense. Obtaining prior written consent to a search would be even better, particularly if private security personnel and/or facilities will be using the drones. In addition to examining their state laws with respect to probable cause requirements, sport managers who intend to use drones to acquire spectator information should also review any provisions regarding confidentiality and disclosure of drone-acquired information and establish protocol accordingly. Until the law catches up with drone and related surveillance technologies, it would be best for sport managers in the United States to either avoid using drone surveillance for event security, or to work closely with law enforcement personnel and lawyers to assure that their procedures don’t go near the gray areas of the law.
References
Cases
Arizona v. Hicks, 480 U.S. 321 (1987).
California v. Ciraolo, 476 U.S. 207 (1986).
Collier v. Miller, 414 F. Supp. 1357 (S.D. Tex. 1976).
Coolidge v. New Hampshire, 403 U.S. 443 (1971).
Dow Chemical v. United States, 476 U.S. 227 (1986).
Florida v. Riley, 488 U.S. 445 (1989).
Gaioni v. Folmar, 460 F. Supp. 10 (M.D. Ala. 1978).
Jacobsen v. City of Seattle, 658 P.2d 653 (Wash. 1983).
Johnston v. Tampa Sports Authority, 490 F.3d 820 (11th Cir. 2007).
Sheehan v. San Francisco 49ers, 2007 Cal. App. LEXIS 1186, rev’d and remanded, 2009 Cal. LEXIS 1638 (Cal. 2009).
State of Iowa v. Carter, 267 N.W.2d 385 (Iowa 1978).
Stroeber v. Commission Veteran’s Auditorium, 453 F. Supp. 926 (D. Iowa 1977).
United States v. Jones, 132 S.Ct. 945 (2012).
United States v. Knotts, 460 U.S. 276 (1983).
Wheaton v. Hagan, 435 F. Supp. 1134 (M.D.N.C. 1977).
Constitution
U.S. CONST. amend. IV.
Statutes
Drone Aircraft Privacy and Transparency Act of 2013. H.R. 2868, 113th Cong., 1st Sess., 2013.
Preserving American Privacy Act of 2013. H.R. 637, 113th Cong., 1st Sess., 2013.
Preserving Freedom from Unwarranted Surveillance Act of 2013. H.R. 972 and S. 1016, 113th Cong., 1st Sess., 2013.
Safeguarding Privacy and Fostering Aerospace Innovation Act of 2013. S. 1057, 113th Cong., 1st Sess., 2013.
Other Sources
Ayed, N. (2014, January 13). Russia’s Olympic security to set new surveillance standard at Sochi. CBC News. Retrieved February 11, 2014 from www.cbc.ca/news/world/
Bohm, A. (2014, June 30). Status of 2014 domestic drone legislation in the States. American Civil Liberties Union blog. Retrieved October, 16, 2014 from www.aclu.org/print/blog/technology-and-liberty/
Cohen, J. (2013, June 10). Most Americans back NSA tracking phone records, prioritize probes over privacy. Washington Post. Retrieved October 16, 2014 from www.washingtonpost.com/politics/
Federal Aviation Administration. (2009, February 10). Special notice..sporting events. FDC 9/5151. Retrieved October 15, 2014 from http://tfr.faa.gov/save_pages/detail_9_5151.html
Goel, R. (2013, September 4). Security vs. privacy. Homeland Security News Wire. Retrieved September 29, 2013 from LEXIS-NEXIS.
Koebler, J. (2012, September 20). New Orleans says no to drones at Super Bowl. USNEWS.com. Retrieved September 29, 2013 from LEXIS-NEXIS.
McCann, E. (2012, July 13). UK Olympics are the deadliest games in town. Belfast Telegraph Online. Retrieved September 29, 2013 from LEXIS-NEXIS.
Pac-12 Conference. (2014, September 25). Memorandum: Use of drones in and around Pac-12 football stadiums.
Skillen, C. (2013, July 18). Filmed from a military spy plane, watch the stunning footage of Neymar scoring for Brazil (remind you of Sensible Soccer?). Mail Online. Retrieved September 29, 2013 from LEXIS-NEXIS.
States News Service. (2013, July 25). Planning mega sporting events: Safety and security. Teleconference hosted by the New York Foreign Press Center. Retrieved September 29, 2013 from LEXIS-NEXIS.
Tongish, D. (2011, January 24). Eagle eye: Arlington police may debut drone to survey Super Bowl crowds. KDAF-TV, Dallas. Retrieved September 29, 2013 from LEXIS-NEXIS.
