ALBANY, N.Y. (Jan. 20, 2022) – Two bills filed in the New York Assembly would limit warrantless drone surveillance by state and local law enforcement. The legislation would not only establish important privacy protections at the state level; it would also help thwart the federal surveillance state.
Asm. Ron Kim (D) introduced Assembly Bill 3311 (A3311), and Sen. Jessica Ramos along with a coalition of Democrats introduced a companion bill, Senate Bill 675 (S675), at the same time. Titled the “Protect our Privacy Act,” the legislation would require a search warrant prior to the use of drones for any law enforcement purposes. It would also require police to get a search warrant before obtaining any data or information collected by a privately operated drone.
The bills include an outright ban on the use of drones by law enforcement at concerts, protests, demonstrations, or other actions protected by the First Amendment. It would also prohibit police from using drones equipped with facial recognition software or using facial recognition on video or images obtained or created by a drone.
A3311 and S675 ban the use of drones equipped with lethal or non-lethal weapons.
Both bills were introduced during the 2021 legislative session and will carry over to 2022. There was no action taken on these bills last year.
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.
A3311 has been referred to the Assembly Governmental Operations Committee, and S675 has been referred to the Senate Codes Committee. They need to come up for a hearing and be voted out with a majority before moving forward in the legislative process.
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