Tenth Amendment Center: Washington State Bill Takes on Drone Spying, Would Hinder Federal Surveillance State
OLYMPIA, Wash. (Jan. 16, 2018) – A bill introduced in the Washington state House would limit the use of surveillance drones. 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 nine representatives introduced House Bill 1102 (HB1102) last year and it was reintroduced and retained in its present status for the 2018 session last week.The legislation would require a warrant before deploying a drone to gather “personal information” without a warrant.
The bill uses the term “extraordinary sensing device” instead of “drone.” The term means, “a sensing device attached to or used in conjunction with an aircraft that is operated without the possibility of human intervention from within or on such aircraft, together with associated elements.” HB1102 also includes an expansive definition of “personal information,” which includes images from any part of the electromagnetic spectrum, including x-rays; sounds of any frequency; and scents, even if not detectable by the human nose.
The legislation does include some exceptions to the warrant requirement, including emergency situations that involve criminal activity and present an immediate danger of death or serious injury, the risk of terrorist activity, locating missing persons, traffic crash scene photography, training exercises and a few other specific exceptions.
HB1102 would require police to minimize collection and disclosure of personal information not authorized to be collected.
The legislation also includes provisions limiting the retention and sharing of any data collected.
“Personal information collected…may not be used, copied, or disclosed for any purpose after conclusion of the operation for which the extraordinary sensing device was authorized, unless there is probable cause that the personal information is evidence of criminal activity.”
Information must be deleted within 30 days after probable cause no longer exists if it was gathered from a target of a warrant, and within 10 days for any other data.
Information collected in violation of the law would be inadmissible in court.
HB1102 would also prohibit a local law enforcement agency from procuring a surveillance drone without its local government’s approval. State law enforcement could only purchase a surveillance drone with money specifically allocated by the state legislature. As it now stands, law enforcement agencies can conceivably obtain surveillance drones without any oversight. The federal government often provides grants and other funding sources for this spy-gear, meaning local governments can keep their purchase “off the books.” Members of the community, and even elected officials, often don’t know their police departments possess technology capable of sweeping up electronic data, phone calls and location information. These provisions would make law enforcement agencies accountable to elected officials.
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, 18 states—Alaska, Florida, Idaho, Illinois, Indiana, Iowa, 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.
HB1102 was referred to the Public Safety Committee where it will need to pass by a majority vote before moving on in the legislative process.