CONCORD, N.H. (June 19, 2017) – The New Hampshire Senate killed a bill that would have restricted warrantless and weaponized use of drones by law enforcement. The legislation would not only have establish important privacy protections at the state level, it would have also help thwart the federal surveillance state.

Rep. Neil Kurk, Rep. Robert Cushing and Rep. Paul Berch sponsored House Bill 97 (HB97). Under the proposed law, New Hampshire government agencies could not “use drones, or obtain, receive, use, or retain information acquired by or through a drone, for law enforcement purposes,” without a warrant, with a few specific exceptions. HB97 also included a blanket ban on the use of drones equipped with lethal or non-lethal weapons.

The House passed HB97 on a voice vote back in March, but ran into trouble in the Senate. On May 4, the Executive Departments and Administration Committee unanimously voted the bill inexpedient to legislate by a 5-0 vote. On May 11, the full Senate approved the committee report on a voice vote, killing the legislation.

The committee report claimed the issue was already being addressed “at the national level,” and that “a person’s privacy is already protected under existing statute.” In fact, FAA regulations do not address drone surveillance, and existing statutes do not require warrants for law enforcement drone surveillance. There are also no limits on law enforcement weaponization of drones. Even if existing statutes exist that may relate to drone surveillance, there is no guarantee courts will apply them to drone technology. There was no reason not to pass a law specifically relating to drone surveillance, even if it potentially overlapped with some existing statutes.

It was the second straight year the New Hampshire legislature has failed to pass a bill limiting drone surveillance.

The proposed law would have allowed law enforcement agencies to conduct warrantless drone surveillance pursuant to a legally-recognized exception to the warrant requirement. Other 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 support the tactical deployment of law enforcement personnel and equipment in an emergency situation, to counter high risk of terrorist attacks, for training and for a few other specifically defined criteria.

The legislation limited drone use under the exceptions to 48 hours, after which the law enforcement agency would have had to obtain a warrant.

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. Such evidence also could not be used to establish probable cause.

“Unless the fact of a violation is being disputed, information obtained by a government in violation of paragraphs I and II shall, within 12 hours after the discovery of the violation, be permanently and irretrievably destroyed, shall not be transferred to another government or person, shall not be admissible in any judicial or administrative proceeding and shall not be used to establish reasonable suspicion or probable cause to believe that an offense has been committed.

A government agent violating the law would have faced criminal charges.

The legislation also included restrictions on the personal use of drones.

HB97 applied restrictions on drone use to federal agencies, but a federal preemption clause would likely limit any practical application of the law to the feds.

Impact on the Federal Surveillance State

Although HB97 would have primarily applied to state and local drone use, 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

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