May 30, 2023
At the close of its 2023 spring session this past week, the General Assembly enacted HB3902, the Illinois Drones as First Responders Act (the “Act”).
Current Illinois law prohibits law enforcement from using drones at parades and other large events through the Illinois Freedom from Drone Surveillance Act. Under that statute, law enforcement is able to use drones only (1) to counter a high-risk of a terrorist attack, (2) when law enforcement has first obtained a search warrant, (3) when there is reasonable suspicion of imminent harm to life or of an imminent escape of a suspect (but then only for a 48-hour period), and (4) to capture crime scene and traffic crash photography.
The Act, which is anticipated to be signed into law soon by Governor Pritzker, will expand the use of drones for preemptive and precautionary law enforcement purposes, but only at certain specified events “hosted” by state or local governments.
Use at Parades, Routed Events, and Special Events
The Act will permit law enforcement to use drones as a precautionary safety tool at parades, routed events, and special events. Each of these terms are carefully defined in the Act:
- A “parade” is a “march, procession, or other similar activity consisting of persons, animals, vehicles, or things, or any combination thereof, upon a public street, sidewalk, alley, or other public space, which requires a street closing or otherwise requires stopping or rerouting vehicular traffic because the parade will not or cannot comply with normal and usual traffic regulations or controls.”
- A “routed event” includes a parade, walk, or race that is hosted by the State or a unit of local government, is outdoors and open to the public, and has an estimated attendance of more than 50 people. Parades are included as a type of routed event.
- A “special event” is either a concert or food festival that is hosted by the State or a unit of local government, is outdoors and open to the public, and has an estimated attendance of at least 150 people in communities with a population less than 50,000, at least 250 people in communities with a population of at least 50,000 but less than 100,000, at least 350 people in communities with a population of at least 100,000 but less than 500,000, or at least 500 people in communities with a population of at least 500,000.
Significantly, parades, routed events, and special events do not include “any political protest, march, demonstration, or other assembly protected by the First Amendment.”
The use of drones at any of the three enumerated events requires the posting of notices at least 24 hours in advance at all major entry points to the event. The notice must clearly communicate that drones may be used at the upcoming event for the purpose of real-time monitoring of participant safety.
Drones can be used before and during the event. However, pre-event use is limited to creating maps and determining appropriate access routes, staging areas, and traffic routes. The Act does not specify how far in advance of an event law enforcement may begin using drones. Pre-event footage may not be used in any criminal prosecution.
During an event, drones may be used to detect breaches of event space, evaluate crowd size and density, identify public safety threats, assist in public safety responses to incidents, and assess traffic and pedestrian flow.
In addition to use at parades, routed events, and special events, the Act also adds several scenarios in which law enforcement may use drones:
- Inspection of infrastructure for a designated building or structure.
- Demonstration of the capabilities and functionality of police drones for public relations purposes.
- Response to Public Safety Answering Point dispatched calls for service, where the primary purpose of drone use is for first responders to locate a victim or assist with immediate victim health or safety needs.
- Coordination of the response of emergency personnel.
Also, the Act expands the existing missing person exemption to allow drone usage even when law enforcement is not undertaking a criminal investigation, but is attempting to locate a missing person, engaging in search and rescue operations, or aiding a person who cannot otherwise be safely reached.
Use of Facial Recognition and Weapons
The Act expressly prohibits the use of drones equipped with firearms, projectiles, or other weapons. Further, the Act prohibits law enforcement from using facial recognition in conjunction with drone use, except that information gathered from a drone’s facial recognition software may be used to counter a high risk or a terrorist attack. To qualify for this exception, the United States Secretary of Homeland Security must have indicated that such a risk exists or law enforcement must have a reasonable suspicion that swift action is needed to prevent imminent harm to life.
Information Retention and Disclosure
The Act requires that law enforcement using drones must destroy all information gathered by the drone. Information gathered at a routed or special event must be destroyed within 24 hours; most other information, including information gathered when countering a terrorist attack, locating a missing person, or for crime scene photography, must be destroyed within 30 days.
Prior to the Act’s passage, law enforcement could only retain particular information in limited circumstances, which included when it had a reasonable suspicion that the information contained evidence of criminal activity or was relevant to an ongoing investigation or pending criminal trial. Now, law enforcement officers may retain information if a supervisor at the agency determines that it will be used exclusively for training purposes or if the information consists of only flight path data.
Of particular note is that records of drone usage may be subject to disclosure under the Freedom of Information Act (unless an otherwise-applicable exemption exists), or pursuant to a court order or subpoena in connection with a criminal proceeding or traffic crash investigation. However, a law enforcement agency that uses a drone under the Act is prohibited from selling or disclosing information gathering by the drone to any person to whom disclosure is not authorized.
Administrative and Other Requirements
The Act imposes both policymaking and reporting requirements on law enforcement agencies that utilize drones under the Act. Each law enforcement agency is required to adopt a policy outlining drone use that is consistent with the Act, and that includes provisions for training, discipline, and addressing violations. Agencies must also file, with the Illinois Criminal Justice Information Authority, annual reports concerning drone ownership and drone usage, containing the information specified in the Act.
The Attorney General’s Office will have the authority to investigate compliance with the Act and to initiate appropriate enforcement.
Finally, although not specifically mentioned in the Act, use of drones in compliance with the Act may trigger certain federal regulations concerning the operation of drones over human beings. The Federal Aviation Administration has promulgated specific rules (codified at 14 CFR Part 107) that restrict the type and method of drone operation over people and moving vehicles.
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