ALBANY, N.Y. (Jan. 11, 2021) – A bill filed in the New York Assembly would limit the warrantless use of surveillance drones. The legislation would not only establish important privacy protections at the state level; it would also help thwart the federal surveillance state.
Assm. Nick Perry (D-Brooklyn), along with two Democrat cosponsors, filed Assembly Bill 417 (A417). The legislation would require a warrant for drone surveillance in most situations.
No law enforcement agency or a state, county or municipal agency shall use a drone or other unmanned aircraft to gather, store or collect evidence of any type, including audio or video recordings, or both, or other information pertaining to criminal conduct or conduct in violation of a statute or regulation except to the extent specifically authorized in a valid search warrant; provided, however, that the use of a drone by a law enforcement agency or a state, county or municipal agency is not prohibited when exigent circumstances exist.
Under the proposed law, exigent circumstances would exist if a law enforcement agency possesses reasonable suspicion that swift action is necessary to prevent imminent danger to life.
Police could still use drones without a warrant to “counter the risk of a terrorist incident,” or to patrol national borders.
Any evidence collected or derived from information gathered in violation of the law would be inadmissible in court.
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.
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.
A417 will be officially introduced when the New York Assembly convenes for the 2021 session on Jan. 6. It will be referred to the Governmental Operations Committee where it must pass by a majority vote before moving forward in the legislative process.