NASHVILLE, Tenn. (June 6, 2018) – Tennessee Gov. Bill Haslam has signed a bill making changes to the state’s laws on drone surveillance. The new law tightens up some aspects of the current law, but relaxes provisions relating to data retention.

Sen. Jack Johnson (R-Brentwood) sponsored Senate Bill 1993 (SB1993). The legislation revises the Freedom from Unwarranted Surveillance Act passed in 2013. The new law does not substantially change the current statute. Police still must obtain a warranted before gathering evidence with a drone in most situations. The new law does add an exception for “judicially recognized exceptions to the warrant requirement.” It also adds some other exceptions to the warrant requirement, including allowing the use of a drone to investigate fire scenes and motor vehicle accidents, and to investigate crimes on “publically owned property.” Under the new law, police must operate drones “in compliance and consistent with applicable federal aviation administration rules, exemptions, or other authorizations.”

The most significant change to the current law relates to the storage and sharing of information. Under the old law:

“No data collected on an individual, home, or areas other than the target that justified deployment may be used, copied or disclosed for any purpose. Such data must be deleted as soon as possible, and in no event later than twenty-four (24) hours after collection.”

Under the new law, police have three days to destroy data “unless it is directly relevant to both the lawful reason the drone was being used and to an ongoing investigation or criminal prosecution. If the evidence, information, or other data collected or obtained is directly relevant to both, it shall be retained and deleted by the collecting law enforcement agency in accordance with the same criteria, policies, and procedures used by the agency for evidence collected by methods other than a drone.”

The removal provisions specifically prohibiting the disclosure of incidentally collected information weakens privacy protections and opens the door for Tennessee law enforcement to share such data with other agencies, including the Federal government. Warrant requirements and mandating the destruction of data in a relatively short timeframe still provides significant privacy protections, but changes in this section of the law were negative for privacy.

On the plus side, the new law not only prohibits police from using data illegally gathered by a drone from being used as evidence in court, it now specifically bans using such information as a basis for probable cause to obtain a search or arrest warrant.

The Tennessee Senate passed SB1993 by a 29-0 vote. The House approved the measure 81-8. With Haslam’s signature, the law will go into effect July 1, 2018.

Impact on the Federal Surveillance State

Although the Freedom from Unwarranted Surveillance Act only applies to state and local drone use, it throws a high hurdle in front of some federal programs.

According to a report by the Electronic Frontier Foundation, drones can be equipped with various types of surveillance equipment that can collect high definition video and still images day and night. Drones can be equipped with technology allowing them to intercept cell phone calls, determine GPS locations, and gather license plate information. Drones can be used to determine whether individuals are carrying guns. Synthetic-aperture radar can identify changes in the landscape, such as footprints and tire tracks. Some drones are even equipped with facial recognition. According to research from the Center for the Study of the Drone at Bard College, 347 U.S. police, sheriff, fire, and emergency response units acquired drones between 2009 and early 2017—primarily sheriff’s offices and local police departments.

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.

Currently, 18 states—Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Vermont, Virginia, and Wisconsin—require law enforcement agencies in certain circumstances to obtain a search warrant to use drones for surveillance or to conduct a search.

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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