BOSTON, Mass. (March 4, 2020) – Last month, a Massachusetts joint legislative committee approved a bill that would limit the warrantless use of surveillance drones and prohibit arming unmanned aircraft. The legislation would not only establish important privacy protections at the state level; it would also help thwart the federal surveillance state.
Rep. William Straus (D-Bristol), along with a bipartisan coalition of 27 legislators, introduced House Bill 3139 (H3139) in January. The Joint Committee on Transportation revised the bill and reintroduced it as House Bill 4417 (H4417) and passed it out of committee with a favorable recommendation.
The legislation would require a warrant for drone surveillance in most situations. It would also ban arming drones with a weapon capable of causing serious bodily injury or death.
H4417 includes a few exceptions to the warrant requirement. Police would be able to deploy a surveillance drone to counter the risk of a terrorist incident, or if law enforcement has reasonable suspicion that a drone is necessary to prevent imminent danger to life, to conduct a pursuit of an escapee or suspect, or to facilitate a search for a missing person. Police could also use a drone for crash reconstruction without a warrant.
H4417 would also limit the retention of data gathered by a drone. Under the proposed law, police would be required to permanently erase or destroy all images, footage, data, or recordings captured from a drone within 120 days unless such information contains evidence of a crime or is relevant to an ongoing investigation or judicial proceeding.
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.
H4417 was referred to the House Ways and Means Committee for further consideration. It must pass by a majority vote before moving forward in the legislative process.
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