Technology has always been ahead of the law, or so the adage goes. Smartphones, internet-enabled vehicles, wristwatches, health monitors, home video cameras and other devices have all been part of the discussion around privacy and technology. It’s nearly impossible to write privacy laws to cover devices and capabilities that have yet to be invented, so often times there is new technology on the market while the law tries to catch up. Some believe that to be the case with drones. I do not concur.
The use of drones has been increasing exponentially over the last few years with drones being available for private use, businesses, news reporting and law enforcement, to name a few. Drones are so prevalent that anyone can purchase one on Amazon for fifty bucks, and that includes the attachable 2MP HD Wifi camera. At that price, having a personal drone may become as common as having a cell phone.
But not everyone is fond of drones. While lawmakers around the nation have passed legislation to deal with privacy issues and put restrictions on law enforcement use of drones, some have tried to go too far. Oklahoma State Representative Paul Wesselhoft has been trying for several years to get legislation passed that puts stringent restrictions on law enforcement use of drones. I first wrote of his efforts in 2013, when he teamed up with the ACLU to draft legislation governing drones. It’s always a red flag for me when a legislator is partnering with the ACLU.
OK Politechs (April 2, 2013) – But not everyone is welcoming drones to Oklahoma with open arms. A Republican State Representative, Paul Wesselhoft, teamed up with the ACLU to draft legislation that would require law enforcement to get a warrant before using drones for surveillance purposes and prohibits the state from outfitting drones with weapons. This is ridiculous. Does Wesselhoft believe the Oklahoma City Police Department should get a warrant before putting their helicopter in the air?
Wesselhoft’s legislation, House Bill 1556, has been tabled for this session and will be held over pending a likely interim study on privacy issues related to drones. Wesselhoft said, “We have to keep in mind that these technologies have the very real potential to seriously erode privacy rights.” Michael Toscano, president of the Association for Unmanned Vehicle Systems International, said, ”We believe that your Fourth Amendment rights are protected. There are laws in place for what you can and cannot do with a drone.”
Toscano also provided figures showing there are nearly 19,000 law enforcement entities in the United States, of which only about 300 currently have aerial surveillance capabilities. Helicopters cost about $1,500 an hour to operate, but drones cost less than $50 an hour, meaning a lot of smaller departments would be able to afford the technology. Searching for missing persons, monitoring traffic conditions, weather spotting and security at public events are just a few of the benefits provided by drones.
Rep. Wesselhoft has legislation again this year that puts restrictions on law enforcement use of drones. House Bill 2337, the Oklahoma Unmanned Aerial Surveillance Act, was passed by the House last month with a vote of 56 to 40. The bill is currently assigned to the Public Safety committed in the Senate, where it will, hopefully, die without being brought up for consideration.
House Bill 2337 would put greater standards on law enforcement than those required by the state and U.S. constitutions. Last year in California, Governor Jerry Brown vetoed a similar bill for that reason. A liberal governor vetoing a bill that puts restrictions on law enforcement should give Oklahoma legislators pause before they cast their votes.
Wesselhoft’s bill would require law enforcement to obtain a warrant almost every time a drone is used for surveillance and provides for fines and prison time for police officers who don’t get a warrant. The most egregious part of the bill requires police to obtain a warrant to use a drone in a public area, and only then if they can show that “alternative methods of data collection are either cost-prohibitive or present a significant risk to any person’s bodily safety.” Who defines “cost-prohibitive?”
Wesselhoft’s bill does allow law enforcement to use a drone on public property, but only if they don’t monitor any people on the public property. Seriously.
When surveillance by helicopter or personnel on foot or in a vehicle would be legal without a warrant in a public area, why should be police be restricted from using a drone? If certain manners of police surveillance are legal now without a warrant, surveillance by a drone should also be legal without a warrant.
While I understand that some are reluctant to believe that privacy protections already exist, the fact remains that they do and facts don’t care about your feelings.
In Kyllo v. United States (2001) the Supreme Court ruled that warrantless use of infrared detection as a form of surveillance to identify marijuana cultivation inside a suspect’s home was a Fourth Amendment violation. Such surveillance would also be illegal if done with a drone, but no warrant. Any type of surveillance that would be illegal if done on the ground would also be illegal to do using a drone.
The Supreme Court ruled in California v. Ciraolo (1986) that observing and photographing people’s homes from an airplane flying at 1,000 feet does not violate the Fourth Amendment. In Florida v. Riley (1989) it ruled the same for a helicopter flying at 400 feet. Why should a drone flying at that altitude be any different? Under Wesselhoft’s bill, law enforcement would have to obtain a warrant for the same surveillance that could be done in a helicopter but without a warrant.
No, drone technology has not outpaced the law. Surveillance activities conducted with a drone are already covered by existing laws and by the Fourth Amendment. Rep. Wesselhoft’s bill is an attempt to hobble the law enforcement community from using a new technology. The Oklahoma Senate should do the right thing and let HB2337 die. And, no doubt, Rep. Wesselhoft will try again next year.
Update: 4/7/16: Rep. Wesselhoft has announced on Facebook that his drone bill failed to receive a hearing in Senate committee so it is dead this session.