It’s a race to see which state will be the first to pass legislation governing domestic drone use. Coming out of the gate first was Florida, which passed a bill through several committees in the Senate back in January. This is notable since the Florida legislature didn’t officially convene until March 5—they thought this issue was so important that they moved the bill during their committee organizing sessions. Then Montana pulled up from behind, passing two drones bills all the way through their Senate by mid-February. But, Virginia raced ahead, sending two bills to their governor’s desk by the beginning of March, where they currently await signature.
Drone legislation has been proposed in at least 30 states so far. As part of my job working with ACLU affiliates nationwide to analyze and respond to the various proposals, I have read every single one of these bills, and I thought it would be useful to summarize what we’re seeing in this legislation.
The good news is that the vast majority of the bills require a probable cause warrant in order for law enforcement to use drones to collect information to use against someone in court. This list includes bills in Arizona, California, Florida, Georgia, Idaho, Illinois, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Washington, and Wyoming.
There are, of course, variations among these bills:
- Some ban weaponization of drones (Georgia, Illinois, Massachusetts, Montana, New Hampshire, Oklahoma, and North Dakota).
- Some explicitly provide special protections from aerial surveillance for farmers or ranchers (rural states like Idaho and Missouri).
- Some require reporting on law enforcement agencies’ drone usage so the legislature can find out how drones work in practice. (That list includes Hawaii, Illinois, Maine, Massachusetts, Rhode Island, and Washington).
- A subset of the bills also require law enforcement to justify to their city councils or other local governing body their need for a drone before acquiring one (California, Hawaii, Maine, Oregon, Rhode Island, South Carolina, and Washington).
- Georgia’s bill allows drone use only to investigate felonies—not misdemeanors.
Then there are the states that take a particularly high road when it comes to protecting privacy. Massachusetts and Rhode Island are the leaders here. Both states’ bills prohibit law enforcement from identifying anyone or anything other than the target that justified the warrant and drone deployment. And, they further ensure that wherever drones are used—whether in criminal investigations, searching for missing persons, fighting forest fires, or whatever—information that is incidentally collected cannot be used in court. This is very important. Unlike many traditional searches that can be narrowly tailored to collect information only on a particular target, drones can be equipped with a host of technologies that can suck in information on not just the target, but everyone else who happens to be nearby, or underneath the drone as it travels to the target area. Rhode Island’s bill requires that incidentally collected data be deleted within 24 hours, and we’d like to see others follow their lead.
Meanwhile, Massachusetts and North Dakota bills make explicit that drones cannot be used to conduct surveillance solely based on an individual’s First Amendment-protected activities. So, no parking a drone over a mosque, an Occupy protest, or a Tea Party rally unless law enforcement first obtains a warrant based on facts that are independent from the First Amendment activities in question.
Of course, there are also bills that take the low road:
- North Dakota’s bill explicitly allows incidentally collected information to be introduced in court. So, if a drone on the way to fight a forest fire happens to record you engaged in private activities, the police would not be required to delete that information and could actually use it in court against you, no warrant required—before or after the fact. This could create some dangerous incentives.
- The bill introduced in Arizona, home of SB 1070, only protects US citizens from being spied on by drones and explicitly exempts investigations of drug crimes and human smuggling from warrant requirements in the bill.
And then there are bills, like Montana’s, that prohibit private use of drones, or like Texas’s, that prohibit drone photography, raising First Amendment concerns.
A smaller subset of bills almost completely ban drone use for evidence collection—even with a warrant. That list includes one of the Montana bills, Nebraska (except if there’s a risk of a terrorist attack), and Virginia (for two years, with emergency exceptions). Indiana and Oregon have bills that would prohibit *anyone* from using a drone domestically, except with permission from the person whose property is being surveilled (and, in the case of Indiana, except for hobbyists).
There are also a couple of states that have introduced a middling approach. Their bills require a probable cause warrant for drone use in most investigatory situations, but Maine allows law enforcement to use a drone for less than 48 hours with a court order based on reasonable suspicion, and Hawaii allows surveillance of public spaces based on a similar court order.
And then there’s New Jersey, where the bill synopsis says the intent of the legislation is to require “that police obtain warrant to conduct aerial surveillance utilizing drones,” but the bill text, perplexingly, refers only to court orders and says nothing about probable cause.
Finally, there are bills that just take a different road altogether. Indiana’s Senate passed a resolution urging the creation of a committee to study drone use. Virginia had a bill (which has died) prohibiting the use of drones to monitor hunters on private lands. California has a bill providing tax breaks for drone manufacturers. And Georgia has passed resolutions in both chambers praising the aerospace industry and honoring drone development in their state.
Suffice it to say, the drones are coming, and state legislatures are gearing up for them and testing out what protections will fly in their states. It’s great to see so many legislators taking the privacy threat from drones so seriously; now we must work to ensure that as a result of this concern, strong language that will actually have an effect makes it over the finish line.