TRENTON, N.J. (Feb. 6, 2018) – Two bills introduced in the New Jersey legislature would ban warrantless drone surveillance in most situations. Final passage of this legislation would not only establish important privacy protections at the state level, it would also help thwart the federal surveillance state.
Sen. Nicholas Sacco (D-North Bergen) introduced Senate Bill 577 (S577) on Jan. 9. Rep. Daniel Benson (D-Hamilton Square) introduced a companion bill (A1463) the same day. The legislation would require police to get a warrant before initiating drone surveillance or engaging in any law enforcement activities using an unmanned aircraft in most situations.
It would also ban arming drones with lethal or non-lethal weapons.
The proposed law would allow warrantless drone surveillance if the law enforcement agency has probable cause to believe that a person has committed a crime, is committing a crime, or is about to commit a crime, and exigent circumstances exist making it unreasonable for the law enforcement agency to obtain a warrant authorizing use of an unmanned aerial vehicle. It would also allow the use of a drone without a warrant with the written consent of a property owner and for locating missing persons.
Any data collected that is not related to a criminal investigation must be destroyed within 14 days. The law enforcement agency must also ensure information gathered by a drone is strictly safeguarded and not made available or disclosed to the public or any third party.
Under the proposed law, evidence illegally derived by a law enforcement agency from the use of a drone is prohibited from being used as evidence in a criminal prosecution or disclosed in any other judicial proceeding, administrative proceeding, arbitration proceeding, or legislative proceeding, and may not be used to establish reasonable suspicion or probable cause that an offense has been, is being, or is about to be committed.
A similar bill passed in 2016, but Gov. Chris Christie pocket vetoed it.
Impact on the Federal Surveillance State
Although the proposed law would only apply to state and local drone use, it throws a high hurdle in front of some federal programs.
According to a report by the Electronic Frontier Foundation, drones can be equipped with various types of surveillance equipment that can collect high definition video and still images day and night. Drones can be equipped with technology allowing them to intercept cell phone calls, determine GPS locations, and gather license plate information. Drones can be used to determine whether individuals are carrying guns. Synthetic-aperture radar can identify changes in the landscape, such as footprints and tire tracks. Some drones are even equipped with facial recognition.According to research from the Center for the Study of the Drone at Bard College, 347 U.S. police, sheriff, fire, and emergency response units acquired drones between 2009 and early 2017—primarily sheriff’s offices and local police departments.
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.
Currently, 18 states—Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Vermont, Virginia, and Wisconsin—require law enforcement agencies in certain circumstances to obtain a search warrant to use drones for surveillance or to conduct a search.
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.
S577 was referred to the Senate Law and Public Safety Committee. A1463 was referred to the Assembly Homeland Security and State Preparedness Committee. The bills must pass their respective committees by a majority vote before moving forward in the legislative process.