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New Hampshire House Committees Pass Bills Placing Limits on Drones, Would Thwart Federal Surveillance Program

From the Live Free or Die motto of the state of New Hampshire
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CONCORD, N.H. (Nov. 16, 2015) – Two bills that would restrict the use of drones by state and local law enforcement passed out of New Hampshire state House committees last week. The legislation would not only establish important privacy protections at the state level, they would also help thwart the federal surveillance state.

Rep. Neil Kurk, along with three other legislators, introduced House Bill 602 (HB602) earlier this year. Under the proposed law, New Hampshire state and local law enforcement agencies could not “use drones, or obtain, receive, use, or retain information acquired by or through a drone, to engage in surveillance, to acquire evidence, or to enforce laws,” without a warrant, with a few specific exceptions.

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 counter high risk of terrorist attacks, for training and for a few other specifically defined criteria. It also allows for “judicially recognized exceptions to the warrant requirement.”

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.

HB602 contains a blanket ban on government use of drones armed with lethal or non-lethal weapons, with one exception. Law enforcement can use a drone to “to disperse lachrymatory agents to quell a violent mass civil disorder or riot as defined in RSA 644:1” within strict criteria.

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. It also cannot be used to establish probable cause.

The legislation passed unanimously out of the House Committee on Executive Departments and Administration by a unanimous 12-0 vote on Nov. 12. It can now move on to the full House for Consideration.

A second bill sponsored by Rep. Joe Duarte and seven other representatives cleared the Criminal Justice and Public Safety Committee 15-2.

House Bill 240 (HB240) takes a simpler approach than HB602. It simply declares “no law enforcement agency shall use a drone for the purpose of obtaining evidence. No evidence obtained in violation of this chapter shall be admissible in a criminal prosecution in any court in this state.”

The legislation contains three exceptions. Law enforcement can use a drone with a warrant, to counter the high risk of terrorism and to prevent imminent harm to life or serious damage to property.

HB240 does not prohibit weaponized drones.

Impact on the Federal Surveillance State

Although the proposed bills focus exclusively on state and local drone use and does not apply directly to federal agencies, 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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