By Mike Maharrey
A bill prefiled in the Missouri House would limit warrantless drone surveillance. The legislation would not only establish important privacy protections at the state level; it would also help thwart the federal surveillance state.
Rep. Mike Haffner (R) filed House Bill 401 (HB401) on Dec. 8. The legislation would require state and local law enforcement agencies to get a warrant before using a drone or other unmanned aircraft to gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute or regulation.
The proposed law includes some exceptions to the warrant requirement. Police could use a drone without a warrant “if there is an imminent threat to life or of great bodily harm including, but not limited to, fires, hostage crises, hot pursuit situations if reasonably necessary to prevent harm to law enforcement officers or others, and search and rescue operations on land or water.”
Any information collected in violation of the law would be inadmissible as evidence in a criminal proceeding in any court of law in the state or in an administrative hearing.
HB401 also includes additional provisions regulating drones, including prohibitions on individuals using a drone to surveil private property without the owner’s permission with exceptions.
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 the Information Sharing Environment (ISE).
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
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.
The EPA has used drone surveillance to enforce the Clean Water Act. In 2012, the agency confirmed, “aerial over-flights are only one of many tools that are used as part of the compliance assurance process to identify discharging sources that may impact water quality.”
Sources close to the Tenth Amendment Center say the EPA uses its own drones but also taps into data gathered by state and local areal surveillance. Sources also say the EPA selectively enforces federal regulations, often imposing fines on small and medium farms while letting larger ones go.
Currently, at least 19 states—Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, 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.
HB401 will be officially introduced when the Missouri legislature convenes on Jan. 4, 2023. It will need to be assigned to a committee, receive a hearing, and pass the committee by a majority vote before moving forward in the legislative process.