CONCORD, N.H. (Dec. 12, 2019) – A bill prefiled in the New Hampshire House would restrict the warrantless and weaponized use of drones by law enforcement. The legislation would not only establish important privacy protections at the state level; it would also help thwart the federal surveillance state.

A coalition of four Republicans filed House Bill 1580 (HB1580) for introduction in the 2020 legislative session. The legislation would generally prohibit government use of drones for surveillance.

“No government shall use a drone, or obtain, receive, use, or retain information acquired by or through a drone, to engage in surveillance, to acquire evidence, or to enforce laws; and no government shall use a drone equipped with an imaging device to record an image of an identifiable individual on privately-owned real property in violation of such individual’s reasonable expectation of privacy without his or her consent.  For purposes of this subparagraph, an individual is presumed to have a reasonable expectation of privacy on privately-owned real property if he or she is not observable by individuals located at ground level in a public place where they have a legal right to be, regardless of whether he or she is observable from the air.”

The proposed law allows various exceptions to this general prohibition. Law enforcement agencies could operate a drone with a warrant based on probable cause or under legally recognized exceptions to the warrant requirement. Police could also use a drone with the consent of the targeted individual and the property owner, if there exists an imminent risk of harm to life or serious damage to property, to counter the high risk of a terrorist attack (limited to 48 hours), and for specific non-surveillance purposes. The law also includes exceptions allowing drone use by non-law enforcement agencies.

HB1580 includes a blanket ban on the use of drones equipped with lethal or non-lethal weapons.

Images of identifiable individuals obtained by a government agency would have to be blurred, deleted or otherwise de-identified within 30 days after being obtained unless such images are evidence in a criminal investigation.

Any information gathered in violation of the law would have to be destroyed within 12 hours after the discovery of the violation and could not be transferred to any other agency. Such data would not be admissible in any judicial or administrative proceeding, and could not be used to establish reasonable suspicion or probable cause to believe that an offense has been committed.

HB1580 also includes restrictions on the personal use of drones.

Impact on the Federal Surveillance State

Although the proposed law would only apply 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. As EFF put it, “Drones pose a multitude of privacy risks because they can amass large amounts of data on private citizens, including those engaging in constitutionally protected activity, even if they have not been accused of a crime.”

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 the Information Sharing Environment (ISE).

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

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, at least 19 states—Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, 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.

WHAT’S NEXT

HB1580 will be officially introduced and referred to the Executive Departments and Administration Committee when the 2020 session begins on Jan. 8. A “do-pass” recommendation by the committee will significantly increase the bill’s chance for passage in the House.


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