ALBANY, N.Y. (Mar. 21, 2023) – A bill filed in the New York Assembly would ban 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.
A group of five Democrats led by Asm. Ron Kim (D) introduced Assembly Bill 5251 (A5251) on Mar. 7. It is the companion bill to S4164 filed in the Senate on Fed. 8. The legislation would require a search warrant prior to the use of drones for any law enforcement purposes in most situations. It would also require police to get a search warrant before obtaining any data or information collected by a privately operated drone. Under the law, police would be able to use a drone without a warrant for search and rescue operations and to survey conditions in dangerous areas after a natural disaster.
The proposed law specifically prohibits law enforcement use of drones at concerts, protests, demonstrations, or other actions protected by the First Amendment.
Under the proposed law, existing data or information obtained by the use of drones for law enforcement purposes not part of an ongoing criminal investigation or proceeding would have to be destroyed within one year absent a subpoena or court order.
Additionally, A5251 would ban the use of drones equipped with a firearm or dangerous weapon designed to cause death, serious bodily injury, or incapacitation.
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.
The EPA has used drone surveillance to enforce the Clean Water Act. In 2012, the agency confirmed, “aerial over-flights are only one of many tools that are used as part of the compliance assurance process to identify discharging sources that may impact water quality.”
Sources close to the Tenth Amendment Center say the EPA uses its own drones but also taps into data gathered by state and local areal surveillance. Sources also say the EPA selectively enforces federal regulations, often imposing fines on small and medium farms while letting larger ones go.
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
A5251 was referred to the Assembly Governmental Operations Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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