Last week, a Minnesota House committee passed a bill that would limit warrantless drone surveillance. The legislation would not only establish important privacy protections at the state level; it would also help thwart the federal surveillance state.
A bipartisan coalition of seven sponsors introduced House Bill 1236 (HF1236) on Feb. 14. The legislation would require law enforcement agencies to get a warrant before deploying a drone.
On Feb. 28, the Judiciary Finance and Civil Law Division approved HF1236.
The legislation does include several exceptions to the warrant requirement. Police would be able to use a drone without a warrant during an operation in an emergency situation that involves “a reasonably likely threat to the life or safety of a person.” Police could also deploy a drone to counter a high risk of a terrorist attack by a specific individual or organization if they determine that credible intelligence indicates this risk. Under both of these exceptions, the law enforcement agency would have to submit a sworn statement to the district court detailing the basis for the drone deployment within 48 hours. Police could also obtain a court order to operate a UAV “to collect information from a public area if a court, upon motion, determines that there are specific and articulable facts demonstrating reasonable suspicion of criminal activity, that the operation of the UAV will uncover this activity, and that alternative methods of data collection are either cost prohibitive or present a significant risk to any person’s bodily safety.” Finally, law enforcement agencies could operate drones without a warrant during disaster situations.
HF1236 would prohibit operating a drone armed with weapons. It would also prohibit the use of facial recognition or other biometric-matching technology via a UAV unless expressly authorized to do so through a court order or warrant.
HF1236 includes provisions barring the retention of data on individuals or areas not designated by the warrant. Such information would have to be destroyed within 24 hours. Information obtained or collected by a law enforcement agency in violation of the law would not admissible as evidence in a criminal prosecution in any court.
A companion bill (SF1430) is pending in the Minnesota Senate.
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 a federal program known as the information sharing environment.
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.
HF1236 now moves to the Public Safety and Criminal Justice Reform Finance and Policy Division where it must pass by a majority vote before moving forward in the legislative process.