The Haines Borough Assembly rejected Borough Manager Debra Schnabel’s proposed drone policy that would have, in part, allowed the borough to use a drone to photograph residents’ property without permission.
The policy also addressed the use of a drone in search and rescue, mapping and other applications where aerial images would be useful.
Although the assembly didn’t approve the policy, it also didn’t direct Schnabel not to use them.
“We’re back to where we began before I used a drone,” Schnabel said in a separate interview. She said she would seek assembly approval if she plans to use a drone in the future.
Schnabel created the policy after some residents became aware of and opposed her authorization of the use of a drone to collect images to investigate two zoning violations without the property owners’ knowledge or consent.
“I did employ the use of a drone for a very specific purpose and there was an upwelling of controversy in the community. And as a manager I felt it was a responsibility to address that by getting in front of the issue,” Schnabel said at Tuesday’s regular assembly meeting.
Alaska’s Drone Privacy Guidelines, written by the Alaska legislature’s Unmanned Aircraft Systems Legislative Taskforce, cites the U.S. Constitution’s fourth amendment which “forbids the government from performing warrantless and unreasonable searches of any area in which a person maintains a reasonable expectation of privacy.”
“All Alaskans have a reasonable expectation of privacy to live without fear of unwarranted personal invasion,” the task force’s 2015 drone use guidelines say. “With equal importance, Alaskans enjoy the right to be left alone. The definition for reasonable expectation of privacy directly relates to law enforcement requirements to obtain a warrant before actions of search and seizure.”
No law bans the use of drones for civil enforcement, but Alaska law does require police agencies to obtain a warrant before using a drone to collect evidence where a reasonable expectation of privacy is expected.
While that same language was included in Schnabel’s drone policy, she did not include a similar process in zoning enforcement.
“Where the UAS will be used to document an aerial perspective of land use or development, to survey or assess a warrant is not required, however, the borough will make record of notification or attempt to notify the property owner at least 24 hours prior to a UAS flight,” the policy says.
Mike Denker, a pilot and drone operator familiar with privacy issues, spoke during public comment and said the manager’s drone policy pushes the borough into “a legal frontier” that could result in legal liability.
“There’s a problem there,” Denker said. “For one type of government activity a search warrant is required to protect that reasonable expectation of privacy, but another element, land use, there’s no reasonable expectation of privacy.”
Borough assembly member Brenda Josephson said the assembly should “shelve” the use of drones altogether.
“I think this drone policy is premature,” Josephson said. “I think we’re a town of 2,400 people and we need to start acting like we’re a town of 2,400 people.”
Assembly member Tom Morphet said the borough should consider the use of drones in some applications and suggested an assembly committee review drone use, but the motion failed due to lack of a second.
“This situation arose with a zoning question, a zoning enforcement matter. I think that question, on how we find out what’s happening on a piece of property, to me, to my mind, hasn’t been resolved,” Morphet said.
When investigating land-use violations, borough staff can take photos to document the violation from a public right-of-way without informing the property owner. If the investigator needs to access a portion of the property that can’t be seen from a public space, it’s customary to request permission. A property owner can refuse and the borough can pursue legal action to gain access to the property. Petersburg Community Development Director Liz Cabrera said when property owners deny access to their property, the borough seeks an “administrative warrant.” Cabrera said such a warrant is rarely necessary in Petersburg and that most property owners grant permission when asked.
For assembly member Sean Maidy, asking permission is at the heart of drone use for zoning enforcement in Haines.
“We should really think about these things and realize it’s a tool and it can be used for good and it can be used for bad and ultimately it’s about personal protection and privacy on your private property and you should only be able to be allowed to use a tool with the permission of that owner,” Maidy said.
Maidy made a motion to the effect but it failed due to lack of a second.
Assembly members Stephanie Scott and Heather Lende also disapproved of a drone policy.
Assembly member Tresham Gregg summed his opinion up with a rhetorical question.
“How did we ever survive before drones?” Gregg said.