The Feds “already spy on Americans so much that Rand Paul said it numbered in the ‘gazillions’ after a secret meeting last fall.”
For the second time in less than a year, the Missouri House of Representatives will be considering legislation that will regulate the use of unmanned aerial vehicles within the state. Missouri House Bill 1204, the Preserving Freedom from Unwarranted Surveillance Act, states that “no person, entity, or state agency shall use a drone or other unmanned aircraft to conduct surveillance or observation of any individual, property owned by an individual, farm, or agricultural industry without the consent of that individual, property owner, farm or agricultural industry.”
The bill would also ban the use of photographs or recordings from drones in criminal investigations without a court warrant being issued first. This bill was preceded by a bill last April that was spurred on by a now-debunked story that the celebrity gossip website TMZ was planning to use an unmanned vehicle in order to get candid footage that its paparazzi had no access to.
The 2013 bill, which passed the Missouri House but stalled in the state Senate, would had made journalistic use of drones illegal, as well as outlaw warrantless use of unmanned aerial vehicles.
The 2014 bill is, in part, inspired by revelations that the FBI and other federal agencies have been using surveillance drones since 2006. According to a September 2013 inspector general’s audit of the Justice Department, the FBI has spent more than $3 million to operate a fleet of low-weight surveillance drones to assist in its domestic investigations.
According to documents received under a Freedom of Information Act request last December by Citizens for Ethics and Responsibilities in Washington, the FBI feels there is a legal precedent toward warrantless drone surveillance. Per the FBI, the U.S. Supreme Court decision California v. Ciraolo, for example, establishes that a warrant is not needed for equipment-based surveillance if what is being surveilled can be done so with the naked eye.
In this particular case, warrantless drone use was being argued as being intrusive when law enforcement used it to surveil on a walled-in marijuana garden. As the Supreme Court reasoned, “any member of the public flying in this airspace who glanced down could have seen everything that these officers observed.” This logic extends to the notion that a warrant is not needed to surveil what is “visible to the naked eye.”
Based on this argument, the FBI argues that “visible light” photography, or photography that does not require specific imaging technology — such as infrared or ultraviolet imaging, is permissible without a court order. The FBI backs its use of “visible light” recording equipment with the Supreme Court ruling on Dow Chemical Co. v. United States, which concluded that “the use of aerial observation and photography by government agencies is permitted without a warrant.”
Privacy advocates say the FBI’s approach negates the privacy expectation of a private individual, which the federal government has contended does not exist. In recent cases of government surveillance — including the GPS tracking case United States v. Jones and the National Security Agency’s electronic surveillance scandal — there has been a true concern that the government has been willing to disregard the need for personal privacy for the needs of the state.
“The feds want to push these on the states, and if the states refuse, it’ll foil their plan,” said Michael Boldin, executive director of the Tenth Amendment Center, a California-based think tank. “They already spy on Americans so much that Rand Paul said it numbered in the ‘gazillions’ after a secret meeting last fall. If the feds can get the states to start buying up and running drones over our cities, they’ll certainly want access to all that surveillance information in the future. It’s important that states begin drawing a line in the sand now – no aerial spying here.”
In the past year, 43 states have considered 96 bills that would restrict domestic drone surveillance; 8 states passed their legislation into law. Montana and Oregon require law enforcement to meet the same standards in flying its own drones as it would have to meet in acquiring information from a third-party drone operator and restrict law enforcement from using drone surveillance in applications for warrants. Illinois requires all non-evidence drone data to be purged within 30 days, while Tennessee requires a purge within 24 hours.
Idaho prohibits photography or recording via drone if the individual can profit from the surveillance. Texas restricts the private use of drones, but leaves law enforcement’s use relatively untouched. Virginia has adopted a two-year moratorium on law enforcement drone use. Florida — as well as Idaho, Illinois, Montana, Oregon and Tennessee — requires law enforcement to obtain a probable cause warrant before using a drone.