CHARLESTON, W.V., (Jan. 20, 2016) – Legislation filed in West Virginia last week would ban warrantless drone surveillance in the state, prohibit state and local government from using weaponized drones, and also serve to thwart one aspect of the federal surveillance state.

Introduced by Del. Cindy Frich and eight cosponsors, House Bill 2653 (HB2653)requires law enforcement to obtain a warrant before conducting drone surveillance in most cases. It also includes an outright prohibition on the use of weaponized drones. It reads, in part:

An unmanned aircraft may not conduct any type of surveillance that would violate state laws regarding the interception of aural communications, electronic messaging, personal location data, or acquire video or still images of a person within a home or place without first obtaining all required warrants

The legislation allows for a few exceptions to the warrant requirement, such “surveillance for the assessment and evaluation of environmental or weather‑related damage, erosion, flood or contamination.” Any data collected in violation of the act would be inadmissible in court.

Evidence obtained or collected in violation of this article is not admissible as evidence in a criminal prosecution, including use during trial, at sentencing, before a grand jury, as rebuttal evidence, or during administrative hearings in any court of law in the state.

“Frich and her cosponsors have put together some of the strongest restrictions on drones by government in the country,” said Mike Maharrey of the Tenth Amendment Center. “That means law enforcement lobby groups are likely to oppose it, but strong grassroots support can help this bill get passed.”

The bill includes provisions to prevent mass data storage, requiring destruction of information not relevant to the investigation outlined in the warrant.

Similar legislation, Senate Bill 291 (SB291), was also filed in the state Senate.

Impact on the Federal Surveillance State

Although these bills focus exclusively on state and local drone use and does not apply directly federal agencies, they 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 HB2653 and SB291 are part of a bigger strategy to put an end to government drone surveillance. Virginia led the way with its 2013 moratorium recently took the next step implementing permanent limits on drone surveillance. Each bill introduced, passed, and signed into law creates and builds momentum for other states to do the same.

Michael Boldin

The 10th Amendment

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