Will the Drone Please Take the Stand

A guest post by Travis Moran

In my last article, The Counter Drone Conundrum, I introduced the issues surrounding detection and mitigation of UAS to protect people and critical infrastructure. I focused on the high cost of doing nothing and the complexities of the kill/no kill decision. In this article I will address the other elephant in the room, the coming forensic use of drone data by law enforcement agencies.

You are probably aware that there are more and more documented instances of UAS being used for contraband deliveries . Typically drones are being used to deliver drugs, cellphones, cash and other small items to prisons and jails. Larger drones are routinely being used to smuggle drugs across the border, and to scout the location of border patrol agents.

But the use of drones for criminal acts is not what I am addressing here. My focus today is on the interest of law enforcement in the data generated by your drone in the course of legal UAS operations.

Having a hard time with the idea?

Big Data – Lots of It

Drone operators of all kinds are going to be collecting massive amounts of data. A certain amount of record keeping is mandated by the FAA, some will almost certainly be part of UTM and possibly Remote ID. Beyond that basic business record keeping for services like deliveries is a routine best practice.

As a retired investigator I know that some number of those records will be of interest to law enforcement. Consider these examples:

  • A drone delivery service provider unknowingly delivers contraband.
  • Drone delivery services are being conducted in and around areas of routine criminal activity.
  • Drone delivery services are delivering to a location/person that is under investigation.
  • Drone delivery services are conducted during or within the proximity of time that a crime has occurred.
  • Drone operators are filming protests or large-scale acts of civil disobedience.
  • A drone operator is filming a house or business that is under, or comes under, investigation.

These scenarios offer a tip of the iceberg look at the unquestionable value of drone data to law enforcement.

If one eye in the sky is good, thousands are better.

A Law Enforcement Perspective

With the exception of the early adopters, many and perhaps most law enforcement agencies have yet to come up-to-speed on the potential value of drones as investigative tools. No one is really educating them about how to use drone data as an investigative tool, and since it’s early days and most complaints are about privacy, drones are not yet on their radar as a solution to their most pressing problems.

During my career we went through similar learning curves with cellular communications – and then smart phones and texting, GPS location, and
social media.

Rest assured that law enforcement always learns.

Consider this story Amazon Echo Now An Expert Murder Witness?

Cops have asked Amazon to reveal any audio it might have stored after a man is murdered in a hot tub in Arkansas. The crime, committed in Bentonville, happened in a hot tub, but police found an Echo at the scene and wanted Amazon to unlock any audio it has sent to its cloud servers. Amazon refused, demanding a
warrant first.

And this ingenius example. SiriusXM Satellite Radio Tech Turned Into Surveillance Device in which an enterprising FBI agent put forward a warrant to “activate a tracking device” using the Sirius service to “ascertain the location” of a vehicle. (FYI warrant applications are public documents.)

It’s just a matter of time until law enforcement learns to request coordinates and flight plans. Learns to request video and audio. Learns to ask if anyone (e.g. a dispatcher,) watched the mission and if so, what they observed.

Now, imagine if a homicide took place within hours before or after a drone was in the area or “on the premises.” The investigator is going to want any and all video from that location. And that is just point-in-time specific. Imagine a request for weeks of imagery of a location that, unknown to the drone operator, had been under surveillance.

As drones become ubiquitous, law enforcement will begin to see drone operators as force multipliers. What they will do is ask first, then if refused, seek a subpoena for static information, or, if the situation warrants, a court order or Title III authorization to legally intercept a drone’s video, audio, or GPS coordinates in real time.  You can begin to see why the forecasts for the CUAS industry are through the roof.

By the way, investigators can and will also ask operators to keep them aware of any missions they are planning that are relevant to an investigation. Exactly how this will be defined is still TBD, but my guess is that it will start with specific addresses and perhaps areas – for instance an area known for high volume
drug activity.

Larger operators will need to be prepared not just to comply with these requests, but to manage them so that they do not become massive administrative headaches to say nothing of non-recoupable cost centers.

Mitigation Strategies

If drone data as evidence is a coming trend, it doesn’t take much imagination to see that data storage will rapidly become the other 800 pounder in the room.

How much data do I store, what form, and for and how long?

Record keeping: This is a regulatory question that will be answered over time. For small operators for whom storage capacity is not a concern, keep that data as long as practical. Storage will quickly cause issues for large operators – much like storing text messages becomes unwieldy for cellular providers. That’s why I think that a good starting point is to talk with cellular service provider compliance departments. They have great experience with this and are a resource that should not be overlooked. Hopefully some of the more forward looking UAS industry events will add them to their agendas.

  • It goes without saying that a way to index or catalog this data is essential.

Forensic Expertise: You must have someone that can be define the chain-of-custody and who can keep a solid forensic record of what you do.

  • Have a forensic tracking system and educate them on how to use it.

Demand response: I have gotten these calls. “I just got a subpoena for some data, what do I do?” The answer is, have a well-articulated policy for your organization. Yes, it is a pain. Yes, it is expensive, but it will save you time, money and resources in the future.

  • Identify who manages the inquiry.
  • Put tracking mechanisms for internal compliance and external responsiveness in place.
  • Train and certify someone to appear as the custodian of record who can testify if needed.

Law Enforcement Liaison: As will be described later in the article, this piece will be crucial and can save a lot of headaches and misunderstanding. This type of outreach is crucial for:

  • Engagement
  • Education
  • Investigation

Counsel: Given the complexities of compliance, companies with numerous drones, operators, and systems, should have a legal advisor. Companies that are routinely conducting dozens of flights daily or even weekly, need to think about building a dedicated team including counsel and an engineer who knows how to extract information from the drone, including the transceiver, autonomous flight system, the pilot’s phone, PDA, iPad etc. as well as the mission software.

I would recommend that small independent operators have a go-to counsel who is knowledgeable in areas like electronic evidence and ideally is familiar with the gamut of local, state and Federal drone laws. Be aware that right now there are very few such people in the entire country. Just to be clear, I am not saying that small companies need to have an attorney on retainer, just suggesting that there be a relationship in place.

Education

Currently the combination of drone laws, regulations and ordinances at the federal, state, and local levels are a convoluted mishmash of contradiction. Most of the law enforcement agents I speak with do not understand them. That is not their fault – in most cases it is not (yet) their job to enforce them – and they have lots else to keep them busy.

Clearly, it is going to take work and time if the decision is made to implement an enforcement strategy that depends on local agencies.

But you don’t have to wait.

There is a tremendous opportunity for drone operators to build relationships with local law enforcement agencies.

I believe that this is an incredibly smart thing to do that will pay dividends far into the future. As drone operations grow, operators are likely to experience vandalism, theft, and destruction of both drones and cargo. To say nothing of the safety of operators and equipment. That’s when local law enforcement
relationships matter.

Here are some steps that operators can take to develop those relationships:

  • Most medium to large departments and agencies now have computer forensics certified staff. That is where I recommend starting an engagement because these are the departments that are the most likely to analyze data, or extract data from a seized drone. They will be sponges – trust me.
  • Companies need to help educate law enforcement on what the laws or ordinances are that affect operations and how they can enforce them. Assuming they will know is naive. If you don’t want operators or drones interfered with because the local constabulary doesn’t know the rules – educate them.
  • Develop law enforcement liaisons that can educate locally, regionally, and nationally about your business model, and what theft, damage or vandalism costs are to the business/industry. Pay particular attention to mitigating factors, i.e. life-sustaining supplies. These types of crimes will carry more weight with the investigators and prosecutors as well as more significant penalties for the perpetrator. It is not that they do not want to investigate other incidents, they simply have to prioritize.
  • Educate staff and contractors about chain of custody concepts – basically what and what not to do when recovering a drone that may have been the target of foul play. This is where working with a forensic expert can help to ensure that there are no evidence corrupting mistakes.

Summary

We are heading into unknown territory. The volume of data will be overwhelming and the opportunities to utilize it for a wide range of purposes will continue to grow. This article scratches the surface of what I expect to be the initial points of interaction between drone operators and law enforcement agencies. It is not a problem yet. But as drone operators begin to plan to scale their operations these issues need to be addressed.

Will the use of drone data have an equal impact on every operation? No, probably not. I think that at least initially it will have a lot to do with mission volume and area of operations. Meaning operators that fly a lot in sketchy areas, and in certain scenarios like disaster recovery and public demonstrations are the most likely to be of interest first.

But based on my experience with other technologies that “came out of nowhere” to become essential tools for law enforcement, I know that planning will go a long way toward minimizing the impact of compliance on ongoing operations when the time comes for your drone to take the stand.


Travis Moran is a retired law enforcement professional with over 26 years of enforcement, security, and intelligence experience.
Travis began his federal law enforcement career with the U.S. National Central Bureau – Interpol, before transitioning to the U.S. Department of State and then ultimately the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). During his tours of duty, Travis worked both domestically and internationally on a variety of criminal matters to include narcotics and weapon trafficking organizations, terrorism, mass murders, explosives, bank and immigration fraud.
Travis has extensive experience in energy security working as a physical security specialist for both investor-owned utilities and the North American Electric Reliability Corporation (NERC). During his work with the utility sector, Travis has become an energy subject matter expert regarding threats posed to energy companies from unmanned aircraft systems (UAS/drones).
Travis holds a Master of Arts in Criminology, Law, and Society, a Master of Science in Criminology and a Bachelor of Business Administration.
Link with Travis – https://www.linkedin.com/in/travis-moran-75350665/
follow Travis – @dronin_on