This past month, Representatives Ted Poe (R-TX) and Zoe Lofgren (D-CA) introduced the Preserving American Privacy Act of 2013 (HR 637), a bipartisan bill that would establish basic legal ground rules for the domestic use of drones (aka “unmanned aircraft systems”). The principles now governing searches by this new technology are vague, and the clarity of this bill would greatly benefit both police and the public. It represents a promising and crucial step in reigning in overbroad domestic surveillance. The following is a brief summary of its provisions and some suggestions for improvement.
A summary of HR 637
Collection of Data
The bill provides that information “reasonably likely to enable identification of an individual” and information about one’s property that is not in plain view (collectively, “covered information”) may be collected by drones only under a warrant or court order, as well as in order to enforce immigration laws, in response to reasonable belief of limited “emergency situation[s]”, or where the search subject consents. 3119c(c). All evidence collected in violation of the Act is excluded from admission at trial. 3119c(a).
Operation of Drones & Disclosure of Covered Information
In order to further protect privacy, the bill requires that agencies using surveillance drones “minimize, to the maximum extent practicable,” collection and disclosure of covered information. 3119b(b). In addition, any agency applying for a license to operate the drones in national airspace must submit a data collection statement that provides for certain means of transparency and accountability. 3119b(c).
Reporting of Data Collection Practices
The Act requires reporting and compilation of statistics on drones’ use for an annual report to Congress. 3119e(c).
Restrictions on Private Use of Drones
Under the bill, it is only unlawful for private actors to “intentionally operate” drones in order to surveil people engaging in “personal or familial activity under circumstances in which the individual had a reasonable expectation of privacy” and by means that would be “highly offensive” to the average person. 3119f. Further limiting what would be illegal private use of drones, the bill would only outlaw such surveillance if the images captured required the use of a “visual or auditory enhancing device.” 3119f.
Ban on Weaponization
While the Act stops short of outlawing all armed drones, it would prohibit the domestic operation of drones “armed with firearms.” 3119h.
Concerns About the Bill
While the bill provides a much-needed affirmation of the Fourth Amendment, here are a number of areas for improvement as this bill moves through the House Committee on the Judiciary.
Provide Meaningful Enforcement Mechanism:
The bill provides that any covered information collected in violation of it shall be removed from all databases. However, it is unclear how those subject to such surveillance would know whether the information has been deleted with expanding state secrets doctrine.
In addition, the bill does not explicitly provide a private right of action. This leaves too much discretion within the department and stops short of providing for monetary damages for such abuses of power that might deter similar violations in the future.
Equally troublesome is the fact that the drone licenses of those agencies that violate the Act are not automatically withdrawn, but discretion instead lies with the Attorney General, the nation’s head prosecutor whose main disincentive against violative searches are lawsuits, which are foreclosed by the lack of a private right of action.
Strengthen mens rea requirement:
The Act only prohibits the “purpose[ful]” collection of covered information by domestic drones. 3119c(b)(2). The Act’s exclusionary rule, which would bar impermissibly obtained evidence from being used in a criminal trial, may not apply if the collection was merely “knowing,” let alone wreckless or negligent.
Strengthen restrictions on private use of drones:
The bill provides that private drone surveillance is only illegal if it uses--and had to use--a visual or auditory enhancing device. That standard is far too narrow a restriction, because it leaves open the possibility of using small drones (already in development) for unfettered close surveillance. As the technology matures, surveillance threats will evolve beyond aircraft-like drones in the high airspace.