By TJ Martinelli
At least 10 states are currently considering legislation that would restrict the use of drones as warrantless surveillance tools, establishing important privacy protections at the state level and thwarting the federal surveillance state.
States considering placing limits on drones include California, Wyoming, Colorado, North Dakota, Kentucky, Virginia, New York, Vermont, New Hampshire, Maine, and Connecticut, and sources close to the OffNow Project say they expect to see that number grow in the coming weeks.They could soon states join states that have already placed limits on the use of drones, including Wisconsin, Oregon, Idaho, Utah, Texas, Florida, Illinois, Indiana and Tennessee.
Each of these bills place restrictions on the use of drones, most commonly requiring law enforcement to obtain a warrant before using them to gather data. While they are all similar, legislation varies in the level of restriction imposed, protections against abuse, and additional bans.
For example, House Bill 12 (HB12) in Kentucky not only bans warrantless use of drones, but also facial recognition software. Assembly Bill 37 and Assembly Bill 56 (AB56) in California make exceptions for the use of drones in non-spying situations, such as assistance for search and rescue missions, surveying environmental disasters like oil spills, and to inspect state parks and wilderness areas. These two bills would also require the data obtained to be destroyed within one year. However, some bills do not contain this specific stipulation or, like North Dakota’s House Bill 1328 (HB1328) the warrant to conduct drone surveillance can only be issued during the investigation of a felony and specifically cannot be used for “misdemeanors, traffic infractions, or other non – felony violations of law.”
Other legislation, like New York’s Senate Bill 411 (SB411) and Assembly Bill 1247 (A01247) include penalties for those who violate the provisions, making it a misdemeanor. Bills such as those introduced in New York and Virginia also contain language making evidence gathered in violation of the law inadmissible in a court of law.
Then there are bills like Colorado’s Senate Bill 15-059 (SB15-059) that specifically bar law enforcement from collecting any information obtained on anyone other than the person for whom the warrant was issued, and includes restrictions on the private use of drones as well.
Although these bills all focus on state and local drone use and do not apply directly federal agencies, they do throw a high hurdle in front of some federal programs.
Much of the funding for drones at the state and local level comes from the federal government, in and of itself a constitutional violation. In return, federal agencies tap into the information gathered by state and local law enforcement through fusion centers and a federal program known as the information sharing environment.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
The federal government encourages and funds a network of drones at the sate and local level across the U.S., thereby gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on drone use, state and local governments limit the data available that the feds can access.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.
These drone bills, despite their differences, make up a solid strategy to put and end to government drone surveillance. Each bill introduced, passed, and signed into law creates and builds momentum for other states to do the same.
For the doubters who believed it was either all or nothing, consider the situation two years ago, when the only state to have any kind of drone restrictions was Virginia, and that was merely a moratorium. Now, dozens of states have introduced legislation and passed laws making warrantless drone surveillance under most circumstances illegal. And in Virginia, as the moratorium expiration date approaches, new bills to extend those restrictions are being considered and have already received generous support.
The unlimited use of drones constitutes a major threat to privacy. By placing restrictions on their use at the state level, we not only take a practical step to protect privacy, we also hinder the larger surveillance state. These bills are an important tool in the fight for our privacy rights.