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DOJ Announces New Drone Policy

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by Kelly A. Daly

Calling it “a paradigm-shifting technology with far-reaching social impact,” on November 27, 2019, the Federal government announced the issuance of the new Department of Justice Policy on the Use of Unmanned Aircraft Systems (the “Policy”) governing the operation on Unmanned Aircraft System (“UAS” or “Drone”) technology.

When properly deployed, DOJ acknowledges that UAS technology can serve as a promising tool for enhancing public safety and security, increasing efficiency and reducing risks to law enforcement. To minimize perceived misuses and cybersecurity risks, the DOJ announced its initiative to create “a framework designed to provide accountability and protect privacy and civil liberties.”

The new Policy, which supersedes the DOJ’s 2015 guidance, governs the Department’s use of UAS technology and directs that such use will be in compliance with all applicable provisions of the Constitution, including the Fourth Amendment’s protection against unreasonable searches and seizures and other laws and regulations. DOJ personnel are specifically precluded from using UAS technology in a manner that is inconsistent with the Department’s anti-discrimination policies and laws.

The Policy imposes mandatory training standards and meaningful oversight, including Deputy Attorney General approval, that is tailored to the specific operational and tactical needs of the mission. Working in concert with the FAA, the DOJ will develop and implement plans and procedures that will permit any necessary specialized air traffic management support (including expedited waivers and authorizations and operational security measures).  The Deputy Attorney General will also issue UAS operation tracking and reporting requirements applicable to all of the DOJ’s UAS operations, including instances when the DOJ is using UAS technology to support State, Local, Territorial, Tribal or other Federal agency activities or where the DOJ requests and receives UAS support from other agencies.

DOJ will also be responsible for providing an annual report to the Deputy Attorney General and the Office of Legal Policy summarizing the previous fiscal year’s UAS operations. This report will include a description of the missions flown, including the name of the agency to which assistance is provided, the number and purpose of such agency assistance and the privacy review conducted.  This privacy review will specifically assess and balance the potential intrusiveness and impact on privacy and civil liberties against the relevant governmental interests. Moreover, any resulting information gained will only be used for the properly authorized purpose and the DOJ will not retain personally identifiable information for more that 180 days, unless the retention is determined to be necessary for an authorized purpose and maintained in a Privacy Act system of records consistent with applicable Federal laws, Executive Orders, directives, policies, regulations, standards or other guidance.

Of important note, this Policy specifically provides that it is intended to improve internal management of the DOJ and is not intended to, and may not be relied upon to, create any rights, substantive or procedural, enforceable at law by any party in any civil or criminal matter.