2013 could easily be christened the year of the drone. It was the first full state legislative session after Congress passed a law requiring the Federal Aviation Administration (FAA) to open up domestic airspace much more widely to drones, and it brought an avalanche of state legislative activity as legislators and the public across the country grappled with how to protect privacy in the face of this fast-approaching technology.
Overall, this past year 42 states considered some 96 bills related to domestic drones, the vast majority of which pertained to privacy. We’ve been tracking that legislation here, and I’ve written about the first pieces of legislation introduced and the first to become law. With the 2013 state legislative session sessions coming to a close and all but the year-round legislatures adjourned, it is a good time to take stock of all of this year’s new laws.
Eight states enacted drones legislation. Maine had its drones bill vetoed by its governor, and legislation passed through a chamber or committee in a handful of states. While eight states may seem paltry in comparison to the 43 that considered legislation, it is actually remarkable that that many bills were enacted the first session out of the gate given that legislation often takes multiple years to marinate and gain legislator and public support before passing. And what’s more remarkable is that these initial laws are, for the most part, very good.
The vast majority of the bills that became law require a probable cause warrant in order for law enforcement to use a drone to gather evidence in a criminal investigation, whether that investigation takes place in a private or public space (with appropriate emergency exceptions). This is notable, because while law enforcement should undoubtedly be acquiring a warrant in private spaces, the public spaces portion goes above and beyond Constitutional requirements and is a good indicator of how deeply the public and legislators value their privacy and how viscerally they view drones as a threat to that privacy. The states featuring this probable cause warrant requirement include Florida, Idaho, Illinois, Montana, Oregon, and Tennessee.
There are, of course, distinctions between these states’ laws. Some include special permission for the use of drones around crime scene or crash scene documentation, and around law enforcement training flights. Other differences include:
- Data retention and minimization. Illinois has a 30-day data retention limit where that data is not evidence of a crime or part of an ongoing criminal investigation. Even better, Tennessee has a 24-hour data retention limit on data collected on individuals or property that are not the target of the investigation that justified drone deployment. Illinois also requires that, where possible, care be taken to only collect information on the target of an investigation.
- Third party drone use. Montana and Oregon require law enforcement to meet the same standards they would have to in order to fly their own drones if they want to acquire information from third party drone use.
- Pretextual flights. Montana and Oregon also clarify that information collected by a drone absent a warrant or appropriate emergency exception cannot be used as part of an application for a warrant. This, like the warrant requirement itself, is helpful to curb pretextual flights — where law enforcement flies a drone around trolling just in case anyone below happens to do something wrong.
Private use of drones
There are a few bills that touch on private use of drones.
- I’ve already written at length about Idaho’s law, which may violate the First Amendment by prohibiting photography or recording by drones if an individual will profit from the recording or image.
- Texas got its drone law exactly backwards with a host of prohibitions on private use of drones and very few meaningful protections from drone surveillance by law enforcement.
- Oregon takes a much more tailored approach to private use, prohibiting anyone from flying a drone less than 400 feet above someone else’s private property if they’ve previously flown the drone over that property and been asked not to do it again. (There’s an exception if the property is near a runway, and the drone is coming in for a landing or taking off.)
The final drone bill to become law this year was also the first enacted: Virginia’s legislators opted for a 2-year moratorium on law enforcement use of drones (with emergency, training, and research and development exceptions) so that they could have time to more deeply consider the privacy implications and enact appropriate protections.
The nation’s best drone bill?
As Virginia is considering — and the other 42 states are thinking about what their 2014 drones legislation should look like — we’ve often been asked which of the drones laws we think is best. My preference would actually be a “Frankenstein bill” that takes the best parts of the laws from Illinois and Tennessee (data retention limits, prohibitions on collecting or saving information on non-targets) and Montana and Oregon (extending protections to government access to information collected by third party drones, prohibition on using collected information to justify a warrant). Of course, excellent bills were also introduced (but not yet passed) in Massachusetts, Rhode Island, South Carolina, and many other states that would provide valuable, thoughtful privacy protections and that should certainly remain part of the debate.
Stay tuned. The legislative and public debate over drones is just getting started.