This past month has seen a flurry of state legislative activity to pass bills to limit the use of unmanned aerial vehicles (aka “drones”).
Drones, which are remotely controlled or semiautonomous airplanes used for surveillance or armed operations, have come under increasing scrutiny due to the wake of death and destruction they have left overseas (including extrajudicial assassinations) and their potential use in domestic surveillance.
In a time of growing applications to the Federal Aviation Administration for permits to operate drones domestically, state legislatures are taking steps to establish the guidelines for drone use that the federal government has failed to develop.
So far, at least 30 states have introduced legislation limiting the use of drones.
This past month saw the introduction of bills in Maine and in Massachusetts, as well as passage of a bill in Virginia that now awaits the governor’s signature, and a unanimous vote by a Florida subcommittee in support of its drones bill. The following is a list of issues common to many of these bills; you can use it as a scorecard to see how your state’s drone bill fares or as a guideline for drafting your own drone legislation:
- Ban on weaponization
- Ban on facial recognition software or biometrics
- Specifying limited circumstances in which drone use is lawful (e.g., consent, emergency, warrant/court order, hot pursuit, border enforcement, non-law enforcement purposes such as wildfire detention or search & rescue missions)
- Specifying what must be done with illegally or incidentally captured information (Must it be destroyed? Suppressed at trial?)
- Reporting requirements (Are the statistics public information?)
- Explicit private right of action for violation?
Here is a sampling of the drone bills out there:
Maine’s bill, LD 236, bans the weaponization of drones and the use of facial recognition and biometrics software on them. Drones could be used to gather evidence where the target of surveillance consents, the law enforcement agency has secured a warrant or court order, during a conspiracy threatening national security, to gather information on organized crime, or to prevent “imminent threat to life and safety of person.” Uniquely, the Maine bill requires that searches by drone pursuant to court order must show that alternative surveillance methods are cost-prohibitive or present significant risk to someone’s bodily safety. In other words, drones under court order should be a very last resort. Law enforcement agencies and the attorney general would be required to report annually on the use of drones in publicly accessible reports.
The bill provides various remedies for any violation of its provisions. First, any evidence captured in violation of the bill would be suppressed at trial. Second, those spied on in violation of the bill could bring a civil action for legal or equitable relief.
Much like the Maine bill, Texas’s bill, HB 912, allows the use of drones after consent by the target of surveillance, upon securing a warrant, or where someone is in “imminent danger.” However, additional permitted warrantless circumstances are unique to Texas. For instance, drones could be used in hot pursuit of someone there is probable cause to believe committed a felony or to enforce immigration laws within 25 miles of the border. There is no reporting requirement on use of drone surveillance by either law enforcement agencies or the attorney general.
Information captured in violation of the bill’s provisions or incidental to lawful surveillance of another target would be excluded at trial, would not be public information, and would not be subject to discover or subpoena. Subjects of drone surveillance in violation of the bill could bring a civil action for damages or injunctive relief.
In contrast with the Texas bill, the Massachusetts bills (H 1357, S 1664) would ban weaponization and the use of facial recognition or biometric software in most instances. It would allow the use of drone surveillance only pursuant to a warrant, for non-law enforcement purposes, or in cases of emergency. The bill does not provide for consent searches. Data collected on people other than the target of the search would have to be deleted “as soon as practical.” Under the bill, judges would be required to report various information about drone warrants, which would be publicly available information.
As with the prior bills, evidence collected in violation of the bill would be excluded from trial. Unlike the other two bills, however, there is no explicit right of action for violations.
The following is a list of all known state drone bills:
Alabama: None found
Alaska: HB 159
Arizona: None found
Colorado: None found
Connecticut: None found
Delaware: None found
District of Columbia: None found
Hawaii: HB 783
Indiana: SB 20
Kansas: HB 2394
Kentucky: HB 454
Louisiana: None found
Maine: LD 236
Maryland: HB 1233
Mississippi: None found
Missouri: HB 46
Nebraska: LB 412
Nevada: None found
New Hampshire: HB 619
New Jersey: None found
New Mexico: SB 556
New York: None found
North Carolina: HB 312
North Dakota: HB 1373
Ohio: None found
Oklahoma: HB 1556
Pennsylvania: HB 961
South Dakota: None found
Tennessee: None found
Texas: HB 912
Utah: None found
Vermont: None found
Washington: None found
West Virginia: HB 2732
Wisconsin: None found
Wyoming: HB 242
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