OLYMPIA, Wash. (April 17, 2015) – Yesterday, the Washington state Senate passed a bill that would significantly limit drone surveillance in the state, and also serve to thwart one aspect of the federal surveillance state. Already passed out of the House, the bill goes back to that chamber for final approval with minor amendments.

Rep. David Taylor (R-15th), along with a bipartisan group of 16 legislators, introduced House Bill 1639 (HB1639) in January. The bill would require a warrant for the use of a drone equipped with an “extraordinary sensing device” in most situations. The legislation defines such a device as one “capable of remotely acquiring personally identifiable information from its surroundings.” This would include location data, sounds and imaging.

The Washington state House passed HB1639 73-25 on March 4. The Senate passed a slightly different version 43-4 April 15. The bill now goes back to the House where it must concur with the Senate amendments before HB1639 goes on the the governor’s desk.

The bill does include some exceptions to the warrant requirement, allowing for the use of an extraordinary sensing device “if the agency reasonably determines that the operation does not intend to collect personally identifiable information.” This would include things like forest fire prevention, wildlife management and surveying disaster areas. The legislation also allows the use of a drone with an extraordinary sensing device in defined in emergency situations.

Along with the warrant requirement, HB1639 places restrictions on sharing and copying legally collected data. It prohibits disclosure of personally identifiable information after the conclusion of the operation for which it was authorized unless there exists probably cause of criminal activity. Data collected under a warrant must be destroyed within 30 days of a determination that probable cause no longer exists.

Any information collected in violation of the law would be inadmissible in court, along with any evidence derived from that information.

HB1639 also prohibits state agencies from purchasing drones equipped with extraordinary sensing devices unless the state legislature specifically appropriates the funds. Local agencies cannot purchase such drones without the approval of their city or county council.

Finally, the legislation requires any agency acquiring drones with extraordinary sensing devices to develop written policies for their operation, including procedures to ensure minimization of information collected. These policies must be accessible to the public.

Taken together, the provisions included in HB1639 would establish robust protections of privacy and would ensure information collected by drones does not end up in permanent databases. Even with the exception to the warrant requirement, the bill would represent a tremendous improvement over the status quo in Washington – no limits on drone surveillance at all.

Impact on the Federal Surveillance State

Although HB1639 focuses exclusively on state and local drone use and does not apply directly federal agencies, the legislation would throw 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 sate 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.

Bills like Hb1639 make part of a bigger strategy to put and end to government drone surveillance. Virginia led the way with its 2013 moratorium and appears set to take the next step. Each bill introduced, passed, and signed into law creates and builds momentum for other states to do the same.

Action Items

In Washington State:  Take steps to support limits on drones HERE.

Other States:  Contact your state legislators today – urge them to introduce similar legislation.  Model bills and contact info HERE.

Mike Maharrey

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