ST PAUL, Minn. (Feb. 25, 2020) – Last week, a Minnesota House committee passed a bill that would limit warrantless drone surveillance. The legislation would not only establish important privacy protections at the state level; it would also help thwart the federal surveillance state.
A bipartisan coalition of four Democrats and two Republicans introduced House Bill 3009 (HF3009) on Feb. 11. The legislation would require law enforcement agencies to get a warrant before deploying a drone in most situations. It would also prohibit the use of facial recognition technology on a drone unless the warrant specifically authorizes it. Additionally, the bill would impose a complete ban on armed drones.
On Feb. 20, the House Judiciary Finance and Civil Law Division passed HF3009 with some technical amendments.
Under the proposed law, a law enforcement agency would be required to get local government approval before acquiring a drone.
HF3009 also includes restrictions on the retention and sharing of data gathered by a drone.
Information obtained or collected by a law enforcement agency in violation of the law would not admissible as evidence in a criminal, administrative, or civil proceeding against the data subject.
The bill does include several exceptions to the warrant requirement. Police could deploy a drone without a warrant during an operation in an emergency situation that involves a reasonably likely threat to the life or safety of a person; over a public event where there is a heightened risk to the safety of participants or bystanders; to counter the risk of a terrorist attack by a specific individual or organization if the agency determines that credible intelligence indicates a risk; during natural disasters; to conduct threat assessments; for crash reconstruction; to collect information from a public area if there is reasonable suspicion of criminal activity; for training purposes; and for non-law enforcement purposes.
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
HF3009 will now move to the House floor for further consideration.
