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February 14, 2013

Bipartisan Bill Introduced in Congress Would Prohibit Warrantless Drone Surveillance

Posted in: Drones,Privacy

Screen shot from PBS’s Nova episode, “Rise of the Drones”

Legislation sponsored by two members of the House of Representatives has been introduced to regulate how the government uses drones. The legislation would require law enforcement to get a search warrant or some other kind of judicial approval for surveillance before using drones to investigate criminal wrongdoing. It would, however, allow drone use for fire and rescue missions, monitoring droughts, assessing flood damage or chasing a fleeing criminal.

The bill was introduced on February 13 by Rep. Zoe Lofgren, a Demcorat from California, and Ted Poe, a Republican from Texas. The introduction was praised by the American Civil Liberties Union (ACLU).

“Unmanned drones must not become a perpetual presence in our lives, hovering over us, following us and recording our every move,” said Chris Calabrese, legislative counsel for the ACLU. ”Strict rules should govern the use of drones by the government. By requiring that law enforcement secure judicial approval before using drones, this legislation achieves the right balance for the use of these eyes in the sky.”

The ACLU noted the bill would also require all government agencies “register all drones” and the “results of criminal investigation involving the technology” would have to be “reported to Congress.” It also would reportedly prohibit law enforcement from arming drones.

A previous version of the legislation reintroduced by Poe sought to limit how drones could be used in federal criminal investigations. It sought to prohibit the use of “drone evidence” in “administrative hearings.” And it sought to prohibit the use of private surveillance by private persons:

No Federal agency may authorize the domestic use, including granting a permit to use, of an unmanned aircraft (as defined in section 331 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note)), to permit any private person to conduct surveillance on any other private person without the consent of that other private person or the owner of any real property on which that other private person is present. [emphasis added]

Lofgren did not post anything on her website yet on cosponsoring the legislation, but Poe has put up what he said in the House yesterday.

According to the FAA, by 2015, it will allow the use of drones nationwide, and by 2030, 30,000 drones will be cruising American skies – looking, observing, filming, and hovering over America. They will come whether we like it or not. We will not know where they are or what they’re looking at or what their purpose is, whether it’s permitted or not permitted, whether it’s lawful or unlawful, and we really won’t know who is flying those drones…

…It doesn’t take a constitutional law professor to see why legislation is needed to protect the rights of the American people. The right of a reasonable expectation of privacy is a constitutional right. Any form of snooping or spying, surveillance or eavesdropping goes against the rights that are outlined in the Constitution.

A bill like this is remarkable as it calls for Congress to be “proactive” in protecting Americans’ privacy. Congress is exceptionally poor at being “reactive” when Americans’ rights are actually being violated by government agencies. As Poe said, it aims to set limits so nobody would be using drones to spy on anyone without the legal authority to engage in such activities.

Poe has been an outspoken advocate for protecting privacy as drone use increases. He spoke at an event organized by the Electronic Privacy Information Center (EPIC) in January and said there should be definite guidelines for law enforcement on what they can and cannot do. Fourth Amendment standards should be applied to the use of drones. The right to privacy should be protected, and warrants should be required except under “exigent circumstances” that already exist in current law.

The introduction of the legislation is taking place as more and more legislators in states across the country move to regulate drone use. Illinois state senator Daniel Biss, a Democrat, introduced a bill to limit use to “a particular person or location” and “investigation” and it could not be used for more than 48 hours. Pennsylvania lawmaker Angel Cruz, a Democrat, introduced a bill to require a “court order” from a judge before using “unmanned aircrafts” in the state. Republican state representative David Taylor in Washington put forward a proposal to restrict the “purchase of drones, data collection by the unmanned aerial vehicles” and to impose search warrant requirements and “mandated audits.” The proposal came after Seattle Mayor Mike McGinn “ordered the city’s Police Department to abandon” its drone program.

The Electronic Frontier Foundation (EFF), which has been at the forefront of efforts to force the government to be transparent about who it is authorizing to use drones, published an updated list of entities that have applied for a Federal Aviation Administration (FAA) license to use drones. The list was obtained through a Freedom of Information Act (FOIA) lawsuit and showed the State Department, National Institute of Standards and Technology (NIST), an indian casino, two community colleges and multiple law enforcement agencies in states like California, Idaho, Ohio and Oregon had submitted applications.

EFF and the ACLU are testifying at a public hearing tonight to hopefully stop the Alameda County Sheriff’s Office in Oakland, California, from purchasing a surveillance drone. EFF, with the help of MuckRock News, uncovered documents showing the agency wanted “drones for activities like spying on ‘suspicious persons’ and ‘large crowd control disturbances’ and not just for “emergency purposes.” The county board of supervisors realized the agency had misrepresented its intentions and moved to postpone or even halt plans to buy a surveillance drone.

For more on what agencies, universities or entities are using drones, visit here.

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