The use of drones by Minnesota law enforcement agencies
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The Minneapolis Police Department is preparing to present its proposed policy on the use of deploying drones in an effort to combat crime, respond to emergencies and deescalate dangerous situations.
But drone regulation in law enforcement has been a contentious issue. Some lawmakers and activists are concerned about questionable surveillance tactics.
John Lesch worked on legislation to regulate drone use for Minnesota’s law enforcement agencies when he was a state representative in 2020. He’s now a criminal defense attorney in St. Paul. He joined MPR News host Cathy Wurzer to share his expertise on the matter.
Use the audio player above to listen to the full conversation. Subscribe to the Minnesota Now podcast on Apple Podcasts, Google Podcasts, Spotify or wherever you get your podcasts.
We attempt to make transcripts for Minnesota Now available the next business day after a broadcast. When ready they will appear here.
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Audio transcript
[MUSIC PLAYING] KATHY WURZER: Tomorrow the Minneapolis Police Department will present its proposed drone policy to a Minneapolis City Council committee and the public. The MPD says it wants to deploy drones to combat crime, respond to emergencies, and de-escalate dangerous situations. But drone regulation in law enforcement has been a contentious issue.
Some lawmakers and activists are concerned about questionable surveillance tactics, something seen in the aftermath of George Floyd's murder. John Lesch worked on legislation to regulate drone use in Minnesota law enforcement when he was a state representative in 2020. He's now a criminal defense attorney in Saint Paul. Good to talk with you again.
JOHN LESCH: Thanks for having me, Kathy.
KATHY WURZER: There is a growing list of Minnesota agencies that use drones now. Tell me what was going on just a few short years ago during the debate over the use of these devices in law enforcement.
JOHN LESCH: Well, we worked on this for about six years. I think the first bill I proposed was in 2014, Kathy. But when we finally got law enforcement to come around to passing a statute, we had to include these nine exceptions to what would normally be a warrant requirement for them to surveil people. And that was how we got the compromise passed with the Senate was at the time controlled by Republicans.
KATHY WURZER: So walk me through this for just a moment. So does a law enforcement agency still have to have a warrant to fly a drone?
JOHN LESCH: They do not.
KATHY WURZER: They do not.
JOHN LESCH: They have to have a warrant unless it meets one of the nine exceptions we crafted into law. And some of those exceptions are, for lack of a better term, a little loosey-goosey of how you can characterize the reasons why you're flying the drone, and that's why it makes people a bit nervous. For example, to collect information from a public area if there's a reasonable suspicion of criminal activity. That's definitely lower than a warrant requirement and doesn't require specifics.
KATHY WURZER: I talked to a representative from the ACLU this morning about the state law. And she said, yeah, the law has so many loopholes and exceptions to the policy, it gives police too much discretion, not enough regulation. And you would agree with that?
JOHN LESCH: That's what some people would say. They would say the exceptions swallow the rule. And when I passed it, I was the house author. It was the best version we could get passed. Because remember, Kathy, this was a problem, not just because of what police could do, but because of the availability of the data.
Minnesota's public data law means anyone has access to this data unless the legislature crafts a data set that makes it public, which means any deployment of this technology would be presumptively public to your neighbor so we had kind of a desperation to get something passed pretty quickly. And this was the version we could get passed with these exceptions. But some people do say that all of the exceptions follow the rule.
KATHY WURZER: Police flew drones over the Floyd protests and privacy advocates say that can lead to a chilling effect on free speech. Police can also easily apply face surveillance technology to footage collected by a surveillance drone that passes over a crowd. Does the law deal with that?
JOHN LESCH: The law specifically says they cannot deploy drones with facial recognition technology among a few other prohibitions. I don't know that they couldn't necessarily take that information later on and somehow use it in a different version for the data file itself and apply separate facial recognition to that, but they can't have it on the drone itself.
KATHY WURZER: Did you get a chance to look at this draft from the MPD? If you did, what stands out to you about it?
JOHN LESCH: I did. And what I saw was that for the most part, it's essentially the same requirements as the Minnesota law which was passed with the imprimatur of law enforcement. And the last I checked, the Minneapolis City Council is pretty far to the left of the Republican-controlled Senate, who was in control when we passed the bill. So I guess I'd be pretty amazed if the Minneapolis City Council agreed to the same language that they'd passed. I'd expect that they would tighten it up in several areas.
KATHY WURZER: The ACLU individual we talked to today also thought that she would like to see-- with the state law that's more of a flaw, she'd like to see a higher ceiling, I guess, especially when you're dealing with the MPD.
JOHN LESCH: I absolutely agree. And I would add, Kathy, too. I worked with law enforcement and specifically the NYPD for years during which they deployed new technologies like cell phone exploitation devices, license plate readers, and body cameras. And in my opinion, they haven't shown themselves to be particularly nimble in deploying new technologies with privacy concerns in mind.
So yes, it's going to be up to the Minneapolis City Council to draw those lines for them and the heightened standard I would expect are really important. For example, maybe with those areas such as surveilling a public event, you could require language that would meet a warrant requirement but just wouldn't require a sworn affidavit that they'd have to submit to a judge. I think that would be a good way to tighten it up.
KATHY WURZER: So what are your concerns? How concerned are you that the MPD says we're ready to deploy these drones to combat crime and to respond to emergencies.
JOHN LESCH: Well, based on the track record, I'm not very satisfied. When they put out body cameras, they swear they had a policy in place and the best I could get from the chief at that time was a one-pager SOP on how to use them. I don't think they're particularly nimble and I don't have full confidence that they're going to have a policy in place that really protects personal privacy and civil liberties when they put it out. But maybe I'll be proven wrong, Kathy. I hope I am.
KATHY WURZER: Because police forces are dealing with fewer officers now, do you think that they will need to rely on tech to be more efficient in the future?
JOHN LESCH: Absolutely. And I'm surprised I haven't heard from the union in their opposition to the use of drones. Normally when you try to automate people's jobs, they say no use us. But I don't think I've heard a peep from the union yes on this. Yes, it allows one piece of technology to do the jobs of multiple, and I can't estimate how many different officers. But there is no question, it will be of great use to them.
KATHY WURZER: You know the legislative process very well, do you think that there will be an effort to try to strengthen the drone law, say in the coming sessions?
JOHN LESCH: It's going to come down to whether or not they screw up. If the media story is after a screw up, that drive legislation. So if there's some high profile event that somebody video shows up that shouldn't have been, that becomes the subject of a law that tries to pass.
And keep in mind, Kathy, that just because we have a state law that passes and they have a city policy, it doesn't mean it overrules constitutional protections. So there could well be a federal lawsuit on the breach of privacy rights too where the court says, nope, this law isn't good enough, you breach privacy rights. That could be another reason for why we modify legislation in the future.
KATHY WURZER: Are there states that are doing this well?
JOHN LESCH: Oh, that is an excellent question. I have not kept on it in the two years since I've left the legislature. I haven't kept on who is doing it well. That's a good-- I'd have to look up on that. I don't know the answer to this right now.
KATHY WURZER: All right. But I know you being a criminal defense attorney, I'm sure you'll be watching carefully as to what happens in Minneapolis.
JOHN LESCH: I most certainly will, Kathy.
KATHY WURZER: All right, it's good to talk with you again. Thank you.
JOHN LESCH: Likewise. Thank you.
KATHY WURZER: We've been talking to former DFL state representative, John Lesch. He worked on the legislation back in-- well, a number of years ago. But it passed in 2020 to regulate drone use in Minnesota law enforcement.
Some lawmakers and activists are concerned about questionable surveillance tactics, something seen in the aftermath of George Floyd's murder. John Lesch worked on legislation to regulate drone use in Minnesota law enforcement when he was a state representative in 2020. He's now a criminal defense attorney in Saint Paul. Good to talk with you again.
JOHN LESCH: Thanks for having me, Kathy.
KATHY WURZER: There is a growing list of Minnesota agencies that use drones now. Tell me what was going on just a few short years ago during the debate over the use of these devices in law enforcement.
JOHN LESCH: Well, we worked on this for about six years. I think the first bill I proposed was in 2014, Kathy. But when we finally got law enforcement to come around to passing a statute, we had to include these nine exceptions to what would normally be a warrant requirement for them to surveil people. And that was how we got the compromise passed with the Senate was at the time controlled by Republicans.
KATHY WURZER: So walk me through this for just a moment. So does a law enforcement agency still have to have a warrant to fly a drone?
JOHN LESCH: They do not.
KATHY WURZER: They do not.
JOHN LESCH: They have to have a warrant unless it meets one of the nine exceptions we crafted into law. And some of those exceptions are, for lack of a better term, a little loosey-goosey of how you can characterize the reasons why you're flying the drone, and that's why it makes people a bit nervous. For example, to collect information from a public area if there's a reasonable suspicion of criminal activity. That's definitely lower than a warrant requirement and doesn't require specifics.
KATHY WURZER: I talked to a representative from the ACLU this morning about the state law. And she said, yeah, the law has so many loopholes and exceptions to the policy, it gives police too much discretion, not enough regulation. And you would agree with that?
JOHN LESCH: That's what some people would say. They would say the exceptions swallow the rule. And when I passed it, I was the house author. It was the best version we could get passed. Because remember, Kathy, this was a problem, not just because of what police could do, but because of the availability of the data.
Minnesota's public data law means anyone has access to this data unless the legislature crafts a data set that makes it public, which means any deployment of this technology would be presumptively public to your neighbor so we had kind of a desperation to get something passed pretty quickly. And this was the version we could get passed with these exceptions. But some people do say that all of the exceptions follow the rule.
KATHY WURZER: Police flew drones over the Floyd protests and privacy advocates say that can lead to a chilling effect on free speech. Police can also easily apply face surveillance technology to footage collected by a surveillance drone that passes over a crowd. Does the law deal with that?
JOHN LESCH: The law specifically says they cannot deploy drones with facial recognition technology among a few other prohibitions. I don't know that they couldn't necessarily take that information later on and somehow use it in a different version for the data file itself and apply separate facial recognition to that, but they can't have it on the drone itself.
KATHY WURZER: Did you get a chance to look at this draft from the MPD? If you did, what stands out to you about it?
JOHN LESCH: I did. And what I saw was that for the most part, it's essentially the same requirements as the Minnesota law which was passed with the imprimatur of law enforcement. And the last I checked, the Minneapolis City Council is pretty far to the left of the Republican-controlled Senate, who was in control when we passed the bill. So I guess I'd be pretty amazed if the Minneapolis City Council agreed to the same language that they'd passed. I'd expect that they would tighten it up in several areas.
KATHY WURZER: The ACLU individual we talked to today also thought that she would like to see-- with the state law that's more of a flaw, she'd like to see a higher ceiling, I guess, especially when you're dealing with the MPD.
JOHN LESCH: I absolutely agree. And I would add, Kathy, too. I worked with law enforcement and specifically the NYPD for years during which they deployed new technologies like cell phone exploitation devices, license plate readers, and body cameras. And in my opinion, they haven't shown themselves to be particularly nimble in deploying new technologies with privacy concerns in mind.
So yes, it's going to be up to the Minneapolis City Council to draw those lines for them and the heightened standard I would expect are really important. For example, maybe with those areas such as surveilling a public event, you could require language that would meet a warrant requirement but just wouldn't require a sworn affidavit that they'd have to submit to a judge. I think that would be a good way to tighten it up.
KATHY WURZER: So what are your concerns? How concerned are you that the MPD says we're ready to deploy these drones to combat crime and to respond to emergencies.
JOHN LESCH: Well, based on the track record, I'm not very satisfied. When they put out body cameras, they swear they had a policy in place and the best I could get from the chief at that time was a one-pager SOP on how to use them. I don't think they're particularly nimble and I don't have full confidence that they're going to have a policy in place that really protects personal privacy and civil liberties when they put it out. But maybe I'll be proven wrong, Kathy. I hope I am.
KATHY WURZER: Because police forces are dealing with fewer officers now, do you think that they will need to rely on tech to be more efficient in the future?
JOHN LESCH: Absolutely. And I'm surprised I haven't heard from the union in their opposition to the use of drones. Normally when you try to automate people's jobs, they say no use us. But I don't think I've heard a peep from the union yes on this. Yes, it allows one piece of technology to do the jobs of multiple, and I can't estimate how many different officers. But there is no question, it will be of great use to them.
KATHY WURZER: You know the legislative process very well, do you think that there will be an effort to try to strengthen the drone law, say in the coming sessions?
JOHN LESCH: It's going to come down to whether or not they screw up. If the media story is after a screw up, that drive legislation. So if there's some high profile event that somebody video shows up that shouldn't have been, that becomes the subject of a law that tries to pass.
And keep in mind, Kathy, that just because we have a state law that passes and they have a city policy, it doesn't mean it overrules constitutional protections. So there could well be a federal lawsuit on the breach of privacy rights too where the court says, nope, this law isn't good enough, you breach privacy rights. That could be another reason for why we modify legislation in the future.
KATHY WURZER: Are there states that are doing this well?
JOHN LESCH: Oh, that is an excellent question. I have not kept on it in the two years since I've left the legislature. I haven't kept on who is doing it well. That's a good-- I'd have to look up on that. I don't know the answer to this right now.
KATHY WURZER: All right. But I know you being a criminal defense attorney, I'm sure you'll be watching carefully as to what happens in Minneapolis.
JOHN LESCH: I most certainly will, Kathy.
KATHY WURZER: All right, it's good to talk with you again. Thank you.
JOHN LESCH: Likewise. Thank you.
KATHY WURZER: We've been talking to former DFL state representative, John Lesch. He worked on the legislation back in-- well, a number of years ago. But it passed in 2020 to regulate drone use in Minnesota law enforcement.
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