CONCORD, N.H. (July 6, 2016) – A bill that would have restricted the use of drones by state and local law enforcement died in the New Hampshire legislature after a conference committee failed to reconcile House and Senate versions. The legislation would not only have establish important privacy protections at the state level, they would have also help thwart the federal surveillance state.

Rep. Neil Kurk, along with three other legislators, introduced House Bill 602 (HB602) in 2015, and it carried over to the 2016 session. Under the proposed law, New Hampshire state and local law enforcement agencies could not “use drones, or obtain, receive, use, or retain information acquired by or through a drone, to engage in surveillance, to acquire evidence, or to enforce laws,” without a warrant, with a few specific exceptions.

Exceptions to the warrant requirement included use of a drone with prior consent of the person under surveillance, if reasonable suspicion exists to believe swift action is needed to prevent imminent harm to life or serious damage to property, to counter high risk of terrorist attacks, for training and for a few other specifically defined criteria. It also allowed for “judicially recognized exceptions to the warrant requirement.”

The legislation limited drone use under the exceptions to 48 hours, after which the law enforcement agency must obtain a warrant. Warrants also had to be renewed after 48 hours.

HB602 contained a blanket ban on government use of drones armed with lethal or non-lethal weapons.

The legislation also featured some additional privacy protections, and required the destruction of any evidence obtained in violation of the law, rendering it inadmissible in court.

In addition to the regulation relating to law enforcement, HB602 also featured restrictions on the private use of drones.

The bill was amended numerous times during the legislative process. Eventually, both the House and the Senate passed different versions of the bill. In May, a conference committee was formed to try to reconcile the two versions, but no agreement was reached.

Kurk hinted that the fight to regulate drones in New Hampshire wasn’t over.

“It’s dead. But there have been a number of historical and religious figures who have risen from the dead.”

Impact on the Federal Surveillance State

Although HB602 focused exclusively on state and local drone use and did not apply directly to federal agencies, it threw 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.

Mike Maharrey

The 10th Amendment

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