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Rise of drones forcing states to reconsider laws governing privacy and law enforcement

by Tim Anderson ~ 2014 MLC Annual Meeting Edition ~ Stateline Midwest »

Aerial and camera surveillance of public areas is nothing new, but as lawmakers learned this July during a roundtable discussion, advances in technology are raising new policy questions about everything from privacy and private property to the practices of law enforcement.
Take, for example, the increased capabilities of a drone.
It now can be equipped with high-resolution cameras that observe objects, in detail, as small as 6 inches from as far as 17,000 feet away and can track 65 different targets over a 65-square-mile zone.
“There are a lot of good things that drones can be used for,” said Jeramie Scott of the Electronic Privacy Information Center, noting how effective and inexpensive they have become. “But there need to be some types of guidelines in place for their use.”
States have a central role to play in setting those guidelines, added Scott, who helped facilitate the discussion among state and provincial lawmakers at the Midwestern Legislative Conference Annual Meeting.
As participants learned, legislatures are just beginning to address the myriad issues arising from the increased use and capabilities of drones. To date, their actions have largely centered on law enforcement.
Last year, for example, Illinois adopted a measure (SB 1587) requiring police to demonstrate probable cause and obtain a warrant before employing unmanned surveillance aircraft. The bill included several exemptions — the filming of traffic accidents, for example, and drone use for crime scenes on public property and searches for missing persons.
Under the new law, Illinois legislators also put in place limits on law enforcement’s retention and sharing of information collected by unmanned surveillance aircraft. Police departments, too, must disclose the number of drones they have.
Earlier this year, the Indiana, Iowa and Wisconsin legislatures adopted new drone restrictions as well.
Wisconsin’s SB 196 prohibits the warrantless use of drones (with exceptions for certain emergency situations) in a “place or location where an individual has a reasonable expectation of privacy.” The same goes for the use of drones by individuals. Wisconsin lawmakers made it a Class A misdemeanor to use a drone to photograph, record or observe others in non-public places.
The new laws in Indiana (HB 1009) and Iowa (HF 2289) also require law enforcement to obtain warrants, and Iowa’s statutory change prohibits the use of drones for traffic enforcement.
In the years ahead, state legislators will likely confront other policy questions due to the greater presence of drones. For example, how high in the sky should one’s private property rights be extended, as well as the rights to privacy on that property?
And what kind of expectation of privacy should an individual have in a public place?
“A lot of the privacy we’ve had, particularly privacy in public, has been the result of the lack of technology or cost limitations to surveil people,” Scott said.
Those practical limitations are falling by the wayside, he added.
According to the Electronic Privacy Information Center, drones can carry infrared cameras, heat sensors, global positioning systems, automated license plate readers and sensors that detect movement. Scott added, too, that domestic drones could soon include facial recognition technology.
Regulating their use by law enforcement is a policy area where government can clearly intervene. It will be more complicated, and legally problematic, if and when states try to curb the use of drones in public places by individuals or by private industry for commercial use, Scott said.