CHARLESTON, W.Va. (Feb. 24, 2016) – A West Virginia bill that would ban warrantless drone surveillance in the state overwhelmingly passed the Senate today. If ultimately passed into law, it would serve to thwart one aspect of the federal surveillance state.

Sen. Robert Plymale and Sen. Charles Trump introduced Senate Bill 291 (SB291) in January. The legislation would require state and local law enforcement to obtain a warrant before conducting surveillance, or gathering evidence or collecting information on targeted individuals or on private property. The bill specifically prohibits photography and electronic recording by police via drone without a warrant.

SB291 does allow for warrantless use of a drone for an emergency response or for search and rescue. It also allows drone surveillance with written consent by the targeted individual.

Evidence obtained in violation of the law would not be admissible in any civil, criminal or administrative proceeding.

An amended version of the legislation passed out of the Senate Judiciary Committee on Saturday, but the committee stripped out important language regarding the weaponization of drones. The amended bill cleared the Senate today by a 32-1 margin.

As introduced, SB291 included a blanket prohibition on weaponized drones. The amendment stripped language from the bill prohibiting non-lethal weapons. As passed by the committee, SB291 bans drones armed with “lethal” weapons, but does not preclude law enforcement agencies from arming an unmanned aircraft with weapons designed to merely incapacitate an individual. Under the law, police could legally arm drones with Tasers or tear gas.

A similar bill (HB2653) is still in the House Judiciary Committee.

Impact on the Federal Surveillance State

Although SB291 focuses 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 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.

Bills 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.

Mike Maharrey

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