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.