California Governor Shoots Down Warrant Requirement For Law Enforcement Drone Usage

from the paperless-surveillance dept

California governor Jerry Brown has just vetoed a bill that would add a warrant requirement for drone surveillance. In Brown’s opinion, the demands of the bill surpassed what the Fourth Amendment actually requires.

“This bill prohibits law enforcement from using a drone without obtaining a search warrant, except in limited circumstances,” the governor said in his veto message (PDF). “There are undoubtedly circumstances where a warrant is appropriate. The bill’s exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution.”

Rather than err on the side of the public’s interests, Brown has come down on the side of law enforcement. Currently, only 10 states require warrants for law enforcement drone usage. California won’t be joining them.

Brown does have a point about public spaces and the Fourth Amendment. There’s little practical difference between drone surveillance and other warrantless surveillance techniques that involve public areas. Police helicopters routinely fly over large cities. Why shouldn’t drones? Just because drones can fly longer, follow closer (and more surreptitiously) and provide a more targeted view doesn’t necessarily turn its surveillance into a violation of the Fourth Amendment. Just as taking pictures of a single person’s license plate is not a violation of privacy, neither are the millions collected every day by automatic license plate readers.

The solution here isn’t necessarily warrant requirements, but it’s worth a shot when there are so few options. Even though some states have managed to push through similar legislation, they’re unlikely to survive legal challenges — at least not in terms of the Fourth Amendment (mileage varies considerably with state constitutions). This is part of a push for more accountability from law enforcement, whose capabilities have advanced at a rate far surpassing its effort to keep the public informed of its activities.

California law enforcement agencies, more often than not, are forced to relinquish information on newly-acquired surveillance technology. There’s rarely an attempt made to consider the public’s concerns before deploying. Drone purchases and deployments almost always lead policy-making by weeks or months.

There needs to be more done to address privacy concerns than simply deferring to the “outside is public” argument. Government figures like California Senator Diane Feinstein and Justice Sotomayor complain about drone usage by the public, claiming they would hate to have a privately-operated drone flying “right outside their windows.” But they defer to law enforcement discretion, somehow forgetting that whatever a privately-owned drone can do, a law enforcement drone can do — including hovering outside a window. (Law enforcement officers suffer from similar rhetorical blind spots…)

If private drones are going to be subject to several rules, so should law enforcement drones. There’s no reason to assume law enforcement officers are better pilots or more inclined to avoid using the drones to invade someone’s privacy. What a warrant requirement does is add a small layer of accountability: who is using it, where they’re using it and why. This generates a paper trail that will help deter abuse. The Fourth Amendment may cover expectations of privacy and prevent unreasonable searches, but there’s nothing similar demanding transparency and accountability from government agencies.

At this point, drone usage by law enforcement agencies isn’t an “if.” It’s a “when.” The public’s rights are being trimmed around the edges by law enforcement tech and that’s what’s prompting this sort of legislative pushback. The legal reasoning may be flawed but the underlying motivation isn’t: police powers continue to expand while the public’s rights continue to erode. There’s an urge to reset this balance and it will sometimes manifest itself as unsound legal arguments.

A good faith effort would be the embrace of warrants for drone usage. Anything that requires warrants also contains several exceptions to be used in emergency situations. This proposed law was no different. If time and/or public safety is a concern, the drones can be immediately deployed. Anything else can wait for a judge’s signature. But this is the sort of proactive move very few will make. The city of Seattle tossed out its drones because of public concern, but it’s a singular exception. That the drones ended up in a state where the governor has vetoed an attempt to force accountability into the system lies somewhere between irony and kismet.

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David says:


The bill’s exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution.

In other words, the bill was not fully covered by existing laws and so had to be sacked.

Jerry Brown will work hard to come up with a replacement bill that will do absolutely nothing that isn’t already provided by existing law.

kenichi tanaka (profile) says:

So much for Democrats protecting the privacy rights of its citizens. I always said that Democrats were never for a democratic society. They are much more aligned with the philosophy of the Republican Party than anything else.

We don’t have a two-part system of government, we only have one party.

The Republican Party, with splinter groups consisting of The Tea Party and The Democratic Party.

Anonymous Coward says:

Re: Re:

No one has ever been for a democratic society.

Under democracy, people could be enslaved because that is popular opinion at the time. Same as today when someone says something that is perceived as racist or homophobic and can be abused by the public so much that they lose a lot.

A Constitutional Republic is best, however that is not enough when the electorate has participated in the corrupting of their officials. Most people vote in their current politicians because even tho they are corrupt, the at least get them something which makes it all okay while they bitch about the rest of them fucking up America.

A Weak Central government with Strong states would be much better as it would allow citizens to migrate around freely when a stupid Repuke or Demtard fucks their state up! When the Central Government fucks it up like Obama Care for example… there is no reprieve everyone gets screwed!

Cal (profile) says:

Re: Re: Re:

Except those who serve within the federal government do not have the authority or power to mandate that we buy lightbulbs, or healthcare.

Just because a person serving within the government says that something is “law” does not make it so. It can be “color of law” (pretend law) and is enforced by those too dumbed down – or domestic enemies of the USA – to know what they swore to support and defend.

Just because a person in a uniform is willing to enforce something does not make it lawful or even legal. Nazi Germany had many who was willing to “just follow orders” or “just do their jobs”, as had military and others here. They discovered that those are NOT acceptable defenses and were sentenced for their crimes.

Also, I believe that Election Fraud had much more to do with those people being “elected” to positions of power. That haws been proven to be true in Obama and H. Clinton’s case.

Anonymous Coward says:

Re: anyone?

AFAIK, a drone is either a UAV, which has very strict FAA requirements for flight plans, or is in effect a radio control model, where no commercial use is allowed courtesy of the FAA. Also there are restrictions on where they can be flown, which AFAIK includes prohibitions of flying over roads, and other peoples property without permission.
So gather evidence of where it is flying, and who is controlling it and forward to the FAA.

Anonymous Coward says:

could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution.”

And this is a bad thing why? Do we really need to go to the very edge of constitutionality? Can’t we, once in a while, provide protections slightly beyond what is absolutely required by the Constitution?

Whatever (profile) says:

Re: Re:

It’s the issue I mentioned the other day, where everything in the US is pushed to the nth degree. It’s either just barely legal or “appears okay”, and that is enough for everyone. Everyone from pirates sites and Aereo to NSA and TSA all play from the same book in the end, it’s legal until a court of law says otherwise.

So if we are going to say that they police should get a warrant even if they don’t TECHNICALLY need one to respect existing law otherwise, then perhaps pirate sites who are “just search engines” could perhaps stop listing stuff that is likely pirated?

Nah…. we push it to the very limits, well beyond the edge of reasonable logic, because, well… the law just barely.

That One Guy (profile) says:

Re: Re: Re:2 Slight difference:

‘Playing it safe’ and getting a warrant: Rights protected when they might not have been had no warrant, and therefor no check on the request for validity, been filed for.

‘Playing it safe’ and taking down something because it might be pirated: No rights protected, but someone just had their stuff removed, potentially taking down otherwise protected speech, violating their rights.

‘Playing it safe’ in the first example is protection people’s rights, doing the same in the second example is taking them away.

If a rights holder(or someone else both authorized to file claims, and with the knowledge to know what is and is not an authorized upload) finds an infringing file, hey, knock yourself out, file DMCA’s to your heart’s content to get it removed, but asking/demanding that things be removed because ‘They might be infringing’? No, not acceptable.

In the balance between Infringement/Non-infringement, I’ll err on the side of not screwing over potentially innocent people, ‘just in case’, when the issue isn’t clear every time.

nmb says:

The dominant elite ready to break the "social contract"

“It’s not accidental that the arms industries demonstrate new weapons designed to be used inside urban areas for suppression of potential riots. There will be no “outside enemy” in the future. The threat for the dominant system will come from the interior, the big urban centers. Soldier-robots will protect worker-robots and resources.”

Cal (profile) says:

‘”There are undoubtedly circumstances where a warrant is appropriate. The bill’s exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution.”‘

943 Supreme Court, West Virginia Board of Education Vs. Barnette 319 U.S. 624, Justice Robert H Jackson said:
“The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcomes of no elections.”

Let’s see if Gov Brown’s statement is true or false starting with the Preamble to the Bill of Rights:

“… THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, IN ORDER TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS, that FURTHER DECLARATORY AND RESTRICTIVE CLAUSES SHOULD BE ADDED: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. …”

So this summary of the Bill of Rights says that “… to prevent misconstruction or abuse of its powers …”

So who is to be prevented from misusing their “powers”? Our governments. Each state was guaranteed – and required to have – a Republican form of government, plus to support the US Constitution.

Amendment IV (Fourth): “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Amendment IX (Ninth): “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Amendment X (Tenth): “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

So the 10th Amendment says that if a power is not expressly delegated to the federal (general) government, then it that power belongs to the states (state Constitution define the powers of those who serve within the state gov), or to the people.

The 9th Amendment says that not all of our natural rights our listed, but they are STILL PROTECTED by the US Constitution, the supreme law of this nation.

The amendments of the Constitution are not to be submitted to a vote. This means that the Congress does not have the power to pass laws concerning these rights. (Congress is the ONLY branch allowed to pass laws. Laws passed by anyone else is NOT a law, it is force and usurpation of legislative branch delegated powers)

Laws passed by the state cannot alter or change LAWFULLY our natural rights.

It is the enforcement of laws outside of the specific listed areas where they have do full jurisdiction within that area is where the subjugation of the American people to laws which those who serve within our government know/should know do not apply to citizens within the states unless they are on a base, etc.

Since the US Constitution says that all those that serve within our governments are forbidden to mess with the Bill of Rights in any way EXCEPT for in the ways specifically listed, Gov. Brown is acting unlawfully with that public comment with the veto. No warrantless searches, spying etc is allowed.

Article. IV. Section. 4: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion;…”

Article. VI: “… This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…”

This says that ALL state representatives are bound by Oath to support this Constitution.

That means the Bill of Rights applies to Governor Brown in the actions that he makes and the laws created within the state of California.

It is Perjury to not keep the Oath, plus a felony with a mandatory sentence, plus (depending) may qualify as terrorism under our laws (28 C.F.R. Section 0.85 Terrorism is defined as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives”);
– 42 USC § 1983 – Civil action for deprivation of rights;
– Ca Government Code Section 19572. Each of the following constitutes cause for discipline of an employee, or of a person whose name appears on any employment list: (s) Refusal to take and subscribe any oath or affirmation that is required by law in connection with the employment.;
– 5 U.S.C. 3331, provides the text of the actual oath of office the three branches of our government, the military, all law enforcement, the heads of the States, all federal employees are required to take before assuming office.
– 5 U.S.C. 3333 requires the three branches of our government, the military, all law enforcement, the heads of the States, all federal employees sign an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of office during their tenure of office as defined by the third part of the law
– 5 U.S.C. 7311 which explicitly makes it a federal criminal offense for anyone employed in the United States Government to “advocate the overthrow of our constitutional form of government”.
– 18 U.S.C. 1918 provides penalties for violation of oath of office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement or a fine.
– Etc.

Alexander Hamilton: “Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

James Madison: “Because if… [An Unalienable Natural Right of Free Men] be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: It is limited with regard to the coordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires, not merely, that the metes and bounds which separate each department of power be invariably maintained: but more especially that neither of them be suffered to overleap the greater Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The people who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are Slaves…”

Dr. Edwin Vieira: “Look at the First Amendment… What does it do? It guarantees freedom of speech, freedom of press, freedom of religion. But how does it do that? I quote: “Congress shall make no law abridging the freedom of speech or of the press” etcetera. “Congress shall make no law;” that’s a statement of an absence of power.” (end Dr. Vieira quote)

”The Legislature, either by amending or otherwise, may not nullify a constitutional provision.” Rost v. Municipal Court of Southern Judicial District of San Mateo (1960)

“There can be no sanction or penalty imposed upon one because of his exercise of Constitutional rights.” Sherar v. Cullen, 481 F. 946

“Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.” U.S. Supreme Court in Miranda v. Arizona, 380 U.S. 436 (1966)

“State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights.” Gross v. State of Illinois, 312 F 2d 257; (1963).

“Decency, security, and liberty alike demand that government officials be subjected to the same rules of conduct that are commands to the citizen. In a Government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Crime is contagious. If government becomes a lawbreaker, it breeds contempt for the law it invites every man to become a law unto himself and against that pernicious doctrine, this court should resolutely set its face.” Olmstead v U.S., 277 US 348, 485; 48 S. Ct. 564, 575; 72 LEd 944 U.S. versus Verdrigo-Urquidez, 110 S. Ct. 1056, 1060-61 (1990)
South v.Maryland/Bowers v. DeVito

Cal (profile) says:

California Oath of Office: Art 20 Misc Subjects, Sec 3: Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:

“I, ______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.
“And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or other- wise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or other-wise, that advocated the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows: ____________________________________________

(If no affiliations, write in the words “No Exceptions”) and that during such time as I hold the office of ______________________________________________ I will not advocate nor become (name of office) a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means.”

And no other oath, declaration, or test, shall be required as a qualification for any public office or employment.

“Public officer and employee” includes every officer and employee of the State, including the University of California, every county, city, city and county, district, and authority, including any department, division, bureau, board, commission, agency, or instrumentality of any of the foregoing.”

Art 5 Exec, Sec 7: “The Governor is commander in chief of a militia that shall be provided by statute. The Governor may call it forth to execute the law.”

Art 5 Exec Sec 13: “Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced…”

Art 7 Public Officers And Employees: SEC. 9. “Notwithstanding any other provision of this Constitution, no person or organization which advocates the overthrow of the Government of the United States or the State by force or violence or other unlawful means or who advocates the support of a foreign government against the United States in the event of hostilities shall:
(a) Hold any office or employment under this State, including but not limited to the University of California, or with any county, city or county, city, district, political subdivision, authority, board, bureau, commission or other public agency of this State; or
(b) Receive any exemption from any tax imposed by this State or any county, city or county, city, district, political subdivision, authority, board, bureau, commission or other public agency of this State.”

Math Man says:

Another Liberal Protects Our Civil Liberties

Liberals ignore our civil liberties to monitor us and protect us from ourselves. Conservatives ignore our civil liberties to monitor us and protect us from external terrorist threats. Corporations ignore our civil liberties to sell us stuff. The deck is stacked against liberty.

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