Drones’ surveillance of farmlands ignites debate on privacy invasion

House bill would sharply limit use by law enforcement, state agencies
By Kylee Zabel | Feb 22, 2013

WNPA Olympia News Bureau — In a quest to defend the rights of Americans outlined in the Fourth Amendment, a seemingly unlikely partnership between a Republican representative and the American Civil Liberties Union (ACLU) geared up bipartisan support to pass a bill that would limit the acquisition and use of surveillance drones by state and local public agencies.

As policy bills’ cut-off loomed, the House Public Safety committee was able to hear public testimony on and vote 9-1 the proposed legislation out of committee and onto House Rules Committee Thursday.

What sparked the House bill was a policy adopted by the Washington State Farm Bureau (WSFB) in November last year to regulate the use of drones to survey farmland without the express consent of the landowner.

As early as August 2012, several national law enforcement agencies had requested that states adopt drone acquisition and usage guidelines as the technology becomes more and more mainstream.

Rep. David Taylor (R-15th District, Moxee), prime sponsor of HB 1771, said that the unregulated, unwarranted surveillance by drones, or unmanned aerial vehicles (UAVs), flies in the face of constitutional freedoms.

“[The bill] attempts to address and establish clear guidelines and sideboards to protect public safety, protect our Constitutional rights and limit the liability on taxpayers,” he said.

The bill calls for public agencies, such as state departments or local law enforcement, that wish to employ drones for public safety use must receive legislative approval, be that either the state Legislature or local government officials.

There is one major exception, however. UAVs may be used without explicit permission in the event of an emergency, such as the use of drones during search and rescue efforts, in the pursuit of dangerous criminals or finding missing children. In order to gain access to information collected by UAVs, an agency must issue either a criminal, administrative or inspection warrant, depending on the nature of the case. Data collected that was not significant to an ongoing case would need to be destroyed, following specific timelines delineated in the bill.

The use of UAVs for training purposes over an existing military installation in the state would also be permitted.

The concern over liability is the cost accrued and paid by taxpayers due to lawsuits filed against agencies when individuals feel their constitutional rights have been violated by an agency’s use of UAVs to track (inadvertently or intentionally) them.

However, some opponents said that restricting the use of UAVs inhibits law enforcement officials from adequately protecting others.

Mitch Barker of the Washington Association of Sheriffs and Police Chiefs (WASPC) asserted that the proper definition of warranted drone use would be better left up to the courts rather than governing bodies. While he said he does not mind some regulation, HB 1771 goes too far and unreasonably curbs the effectiveness of law enforcement.

“We’re fine with sideboards, but this is four walls and a ceiling,” he said.

But Taylor said that his bill is reasonable and is intended to protect an individual’s right to privacy. The fact that agencies may have to do some extra planning in order for the Legislature to approve UAV usage wouldn’t necessarily be a bad thing, he believes. According to the Moxee representative, this provides an added and essential check and balance.

“Everyone wants law enforcement to be able to do their job,” he said. “We just want them to do it within the bounds of the law.”

He added, “It would take some planning on the part of the agency, which I don’t think that’s a bad thing. They already have management plans.”

Adding to the debate, Mike German, senior policy counsel to the ACLU and former special agent to the Federal Bureau of Investigation, said that waiting for the courts to decide on the appropriate limits of UAV deployment would mean waiting for a victim of undue surveillance to file a case. Moreover, an intrusion of privacy would have to occur prior to the judiciary stepping in.

Following the public hearing on the proposed legislation, Taylor said, “I find it interesting that those that are opposed to it are law enforcement. So, that would suggest to me that they’re more worried about their ability to use drones as they see fit and less worried about the constitutional protections we’re trying to address.”

Sponsor of a similar bill in the Senate, Sen. Maralyn Chase (D-32nd District, Shoreline), echoed Taylor’s sentiments.

“The rights of the citizens to privacy are more important than our staff to be inconvenienced by having to go get a warrant,” she said.

German said that due to evolving technology concerning UAV design and function, it is important that public policy debate keeps pace with these rapid enhancements. As drones become cheaper and more available in the markets for domestic use, stalling on the issue of surveillance will eventually become too little, too late, he stated.

But some claimed policy shouldn’t be aimed at a specific technology.

James McMahan of the Washington Association of County Officials said that it doesn’t matter if it’s a helicopter or a drone watching over someone. Policy should address the parameters for a warranted search, not limit the technology by which an agency can conduct a search.

“A search is a search, regardless of the technology,” he said.

There is a clear difference between helicopter surveillance and UAV surveillance, said German’s ACLU of Washington colleague Shankar Narayan. A helicopter is easily detected, he explained.

"You don't know when a dragonfly-sized drone is hovering outside your window," he asserted.

Narayan added that regulations imposed by the law would increase public trust in law enforcement as citizens recognize the effort made by officials to protect not only public safety but individual liberties as well.

One other concern was that the use of drones for patrolling during non-emergency cases would restrict law enforcement from improving public safety. An example provided by Rep. Brad Klippert (R-8th District, Kennewick) was the increase in thefts in parking lots during holiday shopping. It is no doubt that with the use of drones, law enforcement would more easily be able to detect criminals, he suggested.

The idea, however, of public drone surveillance when criminal activity is not known to be occurring still brought some concerns.

Sam Bellomio with StandUP-America said, “It’s ridiculous how anything we do could be considered potential criminal activity.”

Rep. Matt Shea (R-4th District, Spokane Valley), Taylor’s accomplice on many pieces of legislation the two have proposed this session, said that HB 1771 helps address the much-needed give-and-take between public safety and one’s right to privacy.

“There always needs to be a balance in this country between freedom, liberty, privacy and also law enforcement and military applications for the use of drones,” said Shea.

While concerns voiced Thursday are not all fully addressed in the bill, an overwhelming majority of committee members chose to pass it onto the Rules Committee with the hope that via amendments, remaining concerns of different agencies may be addressed.

“We've been working on the issue for several months and we have a lot of work left to do, but we passed the first hurdle today. It's a great day for freedom and liberty in Washington State,” said Taylor.

Chase’s companion Senate bill was given a public hearing Wednesday, but it will not continue through the legislative process this session.

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