LBPD Drone Program Lacks Rules

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By Greg Buhl, CheckLBPD

Four drones, zero departmental policy and yet another reason for the passage of a surveillance equipment transparency ordinance.

During last summer’s protests, the Department of Homeland Security (DHS) had drones and AS350 helicopters in the air over 15 cities across the country collecting hundreds of hours of footage of Black Lives Matter protests. The data was fed into what DHS calls the “big pipe” – a database used by federal agencies and local police for future investigations.

While no federal drone use has been discovered in Long Beach, the police transparency project CheckLBPD.org has uncovered evidence showing that the Long Beach Police Department (LBPD) had permission to have drones in the air on May 31 and June 1, 2020 through a special waiver from the Federal Aviation Administration (FAA).

The FAA Part 107 waiver for the LBPD was obtained through a California Public Records Act (CPRA) request filed in July 2020, but not completed by the LBPD until March 2021. The waiver states: “Operations Authorized: LE – Civil Unrest” and covers May 31 and June 1. It was electronically signed by FAA representative Micheal Sheldon on June 1, 2020 at 9:17 a.m.

Those were the nights when protests were scheduled in Long Beach – with looting breaking out using the protests as cover around 5 p.m. on May 31. Shortly before 6 p.m. the LBPD issued an “unlawful assembly” order.

No word yet on if there is a “little pipe” where local law enforcement shares their drone footage, but a public records request has been filed for footage collected by the LBPD on those two days. It seems a possibility given there is a Los Angeles County “Looting Task-Force,” which has been reported by the L.A. Times to include multiple federal agencies with an eye toward federal prosecutions.

Additional research using public records requests uncovered financial documents showing that the LBPD’s drone program is almost five years old. The department purchased their first two drones for $16,000 in 2017.

Despite owning drones for almost five years, the department is only now entering the beginning stages of drafting a drone policy.

CheckLBPD filed a CPRA request for a copy of the LBPD’s drone policy in July 2020. After much delay the LBPD replied on March 2, 2021 that they only had a preliminary drone policy. However, the department refused to produce a copy of that draft, citing a section of the CPRA that protects drafts from public records requests in some circumstances.

Weeks after their refusal to produce a copy of their draft policy and almost five years after purchasing their first drone, the department issued a public bid solicitation on March 31, 2021 for an “Unmanned Aircraft System (UAS) Consultant.”

The listing states the LBPD …“is in the early stages of writing an Unmanned Aerial Vehicle (UAV) use policy” and describes the job as “providing consulting services to evaluate city and department data, community concerns and determine the usefulness of a department Unmanned Aircraft System (UAS) program.”

The International Association of Chiefs of Police, which the LBPD has relied on for expertise in the past, recommends departments develop their drone policy prior to any use. In Los Angeles, the community was involved in the drafting of the LAPD’s drone policy – with the final policy requiring approval by its civilian police commission.

Adding to the potential problems with the department’s policy-less drone program, all the LBPD’s drones are made by Chinese drone manufacturer DJI, which was recently put on a Department of Commerce blacklist for enabling human rights abuses. The company was also targeted by proposed bi-partisan legislation that would have banned federal agencies from using the company’s drones due to the threat to national security.

Beachcomber reporter Stephen Downing submitted questions to the LBPD Media Relations department last week asking whether drones were used this summer when authorization was sought and for answers related to the lack of policy governing the program. No answers were received at the time of publication.

What is an FAA Part 107 waiver?

Part 107 was enacted by the FAA in 2017 to allow individuals, businesses and government agencies to operate drones in U.S. airspace below 400 feet. Even local police drone use is governed by Part 107. The LBPD sought and received a waiver of two subsections of Part 107 last summer citing “civil unrest.”

One subsection waived was 14 CFR 107.29, which covers night flights. The other was 14 CFR 107.41, which covers permission to fly in certain restricted air space where there is an increased risk of collision with aircraft (or in FAA terminology: Class B, Class C, or Class D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport).

There was no evidence of a 14 CFR 107.39 waiver being sought or granted, which would have allowed the department to fly over people.

That is worth repeating, the LBPD’s waiver for drone use during “civil unrest” did not grant permission to fly over people, which is not a risk-free event. If there is anything the TGIFriday’s mobile mistletoe debacle should have taught us, it is that drones can be dangerous – even cute ones (especially to faces).

The department did turn over the map showing the flight area the FAA granted them, but everything other than the title of the map was redacted.

Growing Drone Fleet, Missing Policy and Poorly Chosen Vendors

The LBPD has a small, but growing fleet of four drones with mounted cameras. Despite purchasing its first two drones almost five years ago, the department has yet to develop any policy for their drone fleet and it did not hire a drone policy consultant until after CPRA requests were for their drone policy.

From documents produced to CheckLBPD, the Long Beach City Attorney’s Office first sought FAA certification for the LBPD’s drone fleet in a May 2018 letter, which was not granted until September 2019.

It is currently unknown if the department’s drones were in use between purchase in 2017 and their 2019 FAA certification date.

At no point in the LBPD’s drone program has there been public disclosure or any local drone policy in place. This is despite the city attorney being involved with the LBPD’s drone program since at least May 2018.

According to LBPD’s public records department, they currently have four drones and four certified pilots.

The department drone inventory as of March 2021 listed two Phantom 4 Professional v.2 drones (FA379N943N and FA379N49XX), one Matrice M100 with Zenmuse Z3 camera (FA379MYET9) and one Mavic Pro (FA379NAX7K).

All four of the LBPD drones are made by Chinese drone manufacturer DJI.

In 2020, DJI was added to the Department of Commerce’s Entities List (aka blacklist) for enabling “wide-scale human rights abuses within China” related to the Uyghur genocide and exporting technology that “aid[s] repressive regimes around the world.”

While being on a Commerce Department entity blacklist only means U.S. companies cannot export technology to the foreign company, many have raised national security concerns about governmental use of DJI drones.

These concerns culminated in the bipartisan American Security Drone Act of 2020, which was proposed after it was publicized that many U.S. government agencies were relying on Chinese-made DJI drones.

If passed, the act would ban all U.S. government purchases of drones from nations identified as national security threats. Since the LBPD makes many of its surveillance purchases using Homeland Security Urban Areas Security Initiative grant money and helps protect critical port infrastructure, perhaps it would be wise for the department’s new drone consultant to consider requiring the department to stick to purchasing drones made by the five U.S. government-approved drone manufacturers.

Refusal to Produce Drone Policy and a New Drone Policy Consultant

The only class of documents the LBPD refused to produce in response to CheckLBPD’s CPRA request on drones was the department’s drone policy. This is arguably a more important document than any FAA authorization because a local policy, if Long Beach had one, would be what protects the people’s privacy and Constitutional rights.

The LAPD got its first drone the same year as the LBPD, although with none of the media attention or outside oversight. At the time, the L.A. Times headline stated: “LAPD becomes nation’s largest police department to test drones after oversight panel signs off on controversial program.”

The LAPD’s drone policy was drafted with the help of their civilian oversight panel. The policy they developed sought to respect individual’s privacy, safet, and Constitutional rights. The LAPD›s drone policy also has specific bans on using facial recognition technology on drone cameras and on mounting weapons on drones.

The LBPD’s five-year-old drone program still operates without a departmental policy. Since the LBPD did not respond to questions, little is known about how their drones are used. Repair bills show that a “SWAT drone” has been sent in for repairs and maintenance.

A drone program with no policy or outside oversight is a recipe for Constitutional violations, specifically of the First Amendment right to freedom of assembly and Fourth Amendment protection against unreasonable search and seizure.

Surveilling peaceful protests with camera-equipped drones could certainly have a chilling effect on the Constitutionally protected right to protest. Drones are also the perfect tool for police to whittle away at our Fourth Amendment rights by expanding what is in “plain view” and reducing the public’s “expectation of privacy.”

CheckLBPD originally filed its CPRA request for the LBPD’s drone policy on July 23, 2020, and after three months inquired about the documents. On Nov. 22, 2020, the LBPD replied, “your public records are currently being processed. We hope to have the review process completed before or by December 11, 2020.”

It would not be until March 2, 2021 that the department would produce the documents. The timeframe set out in the CPRA is for responses to be received in 10 days, with an available 14-day extension. Beyond that delays are only supposed to be due to unusual circumstances.

The LBPD produced everything CheckLBPD asked for except the drone policy we requested. Instead of receiving the LBPD’s drone policy, we were told the document was being withheld. The reason cited, “Preliminary Draft, withhold per Cal. Gov. Code Section 5254(a)(5)”.

That code section allows preliminary drafts of documents to be withheld “if the public interest in withholding those records clearly outweighs the public interest in disclosure.”

That is an odd denial given that the policy will eventually be made public on the LBPD’s Senate Bill 978-mandated page of policy documents and they have just hired a drone consultant whose job is gauging community concerns.

What better way to gauge community concerns than releasing a draft of your policy and getting public feedback before it is enacted? In fact, that would be close to the procedure the LAPD used by involving their independent police oversight commission.

Repeated Failure, Demand Change

Trusting the LBPD to determine what is in the public interest would be a lot easier if they had not gone five years without a drone policy or if this were not the first time they used easily abused or misused new technology in secret without any departmental policy or outside oversight.

In Long Beach, the only outside oversight of LBPD policy is the City Council’s Public Safety Committee. A majority of that committee has received Long Beach Police Officer Association campaign donations and/or endorsements, and they repeatedly failed to properly oversee the LBPD’s growing surveillance technologies.

Drone policy is not even the most important policy that is missing. The LBPD has used facial recognition technology for over a decade and has dabbled in other problematic technology like social media monitoring – all without policy or outside oversight

Part Two of this article will explore the LBPD’s many surveillance technology missteps, the lack of effective outside oversight, and how the situation demands the passage of a municipal Surveillance Equipment Transparency Ordinance.

This article was written by Greg Buhl, a Long Beach resident, attorney and lead researcher at CheckLBPD.org

Follow the CheckLBPD project on Twitter or Instagram @CheckLBPD for more frequent updates on LBPD surveillance technology issues.

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Comments

When an organizations do not compile with laws, and hide documents from the public they are called "Criminal Organization." The LBPD and the city of LB "constantly", do not compile with laws, and hide documents from the public. I believe that make them a criminal organization as-well. The difference with LB and the city of LA is that the LAPD is held accountable by the citizens and other parts of the city government and here in LB, the LBPD is assisted with its criminal activity by the other parts of our city government, and the citizen don't care. SMH

Realistically, the drones don't do anything that their helicopter didn't already do. Except they are quieter and cheaper to operate.

Maybe they can put more looters and criminals in jail. I say turn them loose. Get more drones. We are too tolerant of criminality. Let the police do their jobs.

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