CONCORD, N.H. (Dec. 12, 2017) – A bill prefiled in the New Hampshire House would restrict the warrantless and 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 prefiled House Bill 1759 (HB1759) in November. The legislation generally prohibits government drone use.
No government shall use a drone, or obtain, receive, use, or retain information acquired by or through a drone, to engage in surveillance, to acquire evidence, or to enforce laws; and
No government shall use a drone equipped with an imaging device to record an image of an identifiable individual on privately-owned real property in violation of such individual’s reasonable expectation of privacy without his or her consent. For purposes of this subparagraph, an individual is presumed to have a reasonable expectation of privacy on privately-owned real property if he or she is not observable by individuals located at ground level in a public place where they have a legal right to be, regardless of whether he or she is observable from the air.
The proposed law allows various exceptions to the general prohibition. Law enforcement agencies could operate a drone with a warrant based on probable cause or under legally recognized exceptions to the warrant requirement. Police could also use a drone with the consent of the targeted individual and the property owner, if there exists an imminent risk of harm to life or serious damage to property, to counter the high risk of a terrorist attack (limited to 48 hours), and for specific non-surveillance purposes. The law also includes exceptions allowing drone use by non-law enforcement agencies.
HB97 includes a blanket ban on the use of drones equipped with lethal or non-lethal weapons.
Images of identifiable individuals obtained by a government agency would have to be blurred, deleted or otherwise de-identified within 30 days after being obtained unless such images are evidence in a criminal investigation.
Any information gathered in violation of the law would have to be immediately destroyed. Such data would not be admissible in any judicial or administrative proceeding, and could not be used to establish reasonable suspicion or probable cause to believe that an offense has been committed.
HB1759 also includes restrictions on the personal use of drones.
Impact on the Federal Surveillance State
Although HB1759 would primarily apply only 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.
HB1759 will be officially introduced when the 2018 legislation begins in January. The bill will be referred to the Committee on Executive Departments and Administration.