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New Hampshire Bill Takes on Drone Spying, Would Also Hinder Federal Surveillance State

CONCORD, N.H. (Dec. 22, 2016) – A bill prefiled in the New Hampshire House for the 2017 legislative session would restrict the warrantless or weaponized use of drones by law enforcement. The legislation would not only establish important privacy protections at the state level, it would also help thwart the federal surveillance state.

Rep. Neil Kurk, Rep. Robert Cushing and Rep. Paul Berch prefiled House Bill 97 (HB97). Under the proposed law, New Hampshire government agencies could not “use drones, or obtain, receive, use, or retain information acquired by or through a drone, for law enforcement purposes,” without a warrant, with a few specific exceptions. HB97 also includes a blanket ban on the use of drones equipped with lethal or non-lethal weapons.

The proposed law would allow law enforcement agencies to conduct warrantless drone surveillance pursuant to a legally-recognized exception to the warrant requirement. Other exceptions to the warrant requirement include use of a drone with prior consent of the person under surveillance, if reasonable suspicion exists to believe swift action is needed to prevent imminent harm to life or serious damage to property, to support the tactical deployment of law enforcement personnel and equipment in an emergency situation, to counter high risk of terrorist attacks, for training and for a few other specifically defined criteria.

The legislation limits drone use under the exceptions to 48 hours, after which the law enforcement agency must obtain a warrant. Warrants must also be renewed after 48 hours.

The legislation also features some additional privacy protections, and requires the destruction of any evidence obtained in violation of the law, rendering it inadmissible in court. Such evidence also cannot be used to establish probable cause.

“Unless the fact of a violation is being disputed, information obtained by a government in violation of paragraphs I and II shall, within 12 hours after the discovery of the violation, be permanently and irretrievably destroyed, shall not be transferred to another government or person, shall not be admissible in any judicial or administrative proceeding and shall not be used to establish reasonable suspicion or probable cause to believe that an offense has been committed.

A government agent violating the law could face criminal charges.

The legislation also includes restrictions on the personal use of drones.

HB97 applies restrictions on drone use to federal agencies, but a federal preemption clause would likely limit any practical application of the law to the feds.

Impact on the Federal Surveillance State

Although HB97 would primarily apply to state and local drone use, it throws 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 state 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.

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HB97 will be officially introduced in the New Hampshire House on Jan. 4 and will be referred to the House Executive Departments and Administration Committee.