April 1, 2014
The use by law enforcement of drones, or unmanned aerial vehicles, is increasingly becoming the subject of state legislation. Five states have enacted legislation limiting the use of drones by law enforcement. As of April 1st, bills in another 17 jurisdictions have been introduced to do the same. (See the legislative summary below for more details).
There is case law on the use of information gathered from manned aerial surveillance. For example, the U.S. Supreme Court has held that a warrant is not required for aerial observation, in the public airspace, at an altitude of 400 feet, of what is visible to the naked eye. Similarly, the court held that the Fourth Amendment was not violated by the naked-eye aerial observation of a back yard. However, State Constitutions may provide more protection that the Fourth Amendment. The New Mexico Court of Appeals recently held that a warrantless helicopter search of a greenhouse was violative of Article 2, § 10 of the New Mexico Constitution.
What additional issues are raised when law enforcement conducts surveillance with unmanned aerial vehicles? Representative John Lesch is the sponsor of Minnesota House File 2552, which would prohibit the warrantless use of drones for surveillance by law enforcement, with certain exceptions.
I had an opportunity to speak with Representative Lesch, who is also a prosecutor for the City of Saint Paul. He explained that drones have the potential for increasing the frequency of surveillance because drones are less expensive to operate than manned aerial surveillance. H.F. 2552 would provide enhanced Fourth Amendment protection relative to drone surveillance, by requiring a search warrant in most situations. Additionally, according to Representative Lesch, H.F. 2552 seeks to prohibit dragnet style collection of personal data by drones.
Representative Lesch compares drone surveillance with a practice that is increasingly being used by law enforcement throughout the country: license plate reader (LPR), or automatic number plate recognition (ANPR). This technology involves the use of cameras mounted on police vehicles to gather data related to license plates. In Minnesota, this data collection practice has been controversial. Law enforcement has successfully used this data to prosecute criminal cases, however, the data has also been used by private parties to help in the repossession of automobiles. There are a number of bills pending before the Minnesota Legislature proposing limitations on the retention LPR data, see for example 2013 H.F. 474.
The current crop of drone legislation appears to avoid the thorny issues raised by LPR data collection, by limiting the availability of drone surveillance and avoiding mass collection of personal data. To track pending legislation on this topic, use Capitol Watch on WestlawNext – search terms “drone”, “unmanned aerial”, “unmanned vehicles”, “unmanned aircraft”.
West’s F.S.A. § 934.50. Searches and seizure using a drone.
I.C. § 21-213. Restrictions on use of unmanned aircraft systems–Definition–Violation–Cause of action and damages
725 ILCS 167/1 et seq. Freedom from Drone Surveillance Act.
O.R.S. § 837.300 et seq. Drones.
T. C. A. § 39-13-609. Freedom from unwarranted surveillance.
2013 Alaska House Bill No. 209. An Act relating to the use, possession, and operation of unmanned aerial vehicles; and prohibiting the use of evidence obtained by the use of unmanned aerial vehicles without a warrant.
2013 California Assembly Bill No. 2306. An act relating to unmanned aircraft systems.
2013 California Assembly Bill No. 1327. An act to add Section 6254.31 to the Government Code, and to add Title 14 (commencing with Section 14350) to Part 4 of the Penal Code, relating to unmanned aircraft systems.
2013 Hawaii House Bill No. 1827. Establishes restrictions on the operation of unmanned aircraft systems.
2013 Hawaii House Bill No. 1775. Restricts the use of remotely operated vehicles, including restrictions on the collection of personal information and gathering of evidence by law enforcement agencies.
2013 Hawaii House Bill No. 1691. Prohibits the use of unmanned aircraft systems, commonly known as drones, for the collection of images, sound waves, or other information, except with appropriate consent, under a search warrant, or under other exceptions for certain law enforcement, counter-terrorist, and military operations. Provides civil remedies for aggrieved parties. Prohibits the use of improperly obtained information as evidence except in certain circumstances.
2013 Kansas House Bill No. 2683. Unmanned aerial vehicle regulation act.
2014 Louisiana Senate Bill No. 330. Creates the crime of illegal use of unmanned aircraft to capture images (DRONE Act).
2014 Maryland House Bill No. 785. Drones – Unauthorized Surveillance.
2013 Minnesota House File No. 1994. Law enforcement agencies prohibited from using unmanned aerial cameras to gather evidence on individuals without a warrant or imminent threat.
2013 Minnesota Senate File No. 2687. Drones (unmanned aerial vehicles) law enforcement use regulation.
2013 Minnesota Senate File No. 2037. Law enforcement searches and seizures drone usage prohibition.
2014 Missouri House Bill No. 1204. Establishes the Preserving Freedom from Unwarranted Surveillance Act that prohibits the use of drones or other unmanned aircrafts to gather evidence or other information with specified exceptions.
2013 New Hampshire House Bill No. 1566. Relative to warrant requirements.
2013 New Hampshire House Bill No. 1620. Relative to the use of drones.
2013 New Hampshire House Bill No. 1361. Prohibiting law enforcement agencies from using a drone to collect evidence.
2014 New Jersey Assembly Bill No. 534. Prohibits the use of drones by law enforcement entities.
2014 New Jersey Assembly Bill No. 1039. Sets forth certain standards to be followed by law enforcement agencies and fire departments when utilizing drones.
2014 New Jersey Assembly Bill No. 1164. Establishes certain warrant requirements for law enforcement agencies that utilize drones.
2014 New Jersey Assembly Bill No. 2147. Sets forth certain restriction regarding use of drones by law enforcement entities, forest fire departments, and entertainment venues.
2013 Oklahoma Senate Bill No. 2043. Aircraft; restricting the use of drones.
2014 Utah Senate Bill No. 167. Regulation of Drones.
2013 Washington Senate Bill No. 6172. Protecting Washington citizens from warrantless surveillance, reducing liability, and establishing clear standards under which agencies may utilize unmanned aerial vehicles.
2013 West Virginia House Bill No. 2732. Freedom From Unwarranted Surveillance Act.
2014 Wyoming House Bill No. 105. Unmanned aerial surveillance.
Drones, law enforcement, and personal data