Senator Heller's Legislation Fights Government Drones

Does the Government need a warrant to spy on you with drones or aerial surveillance?

Apparently not.

I commend the AP¹⁾associated press for their work! Allow me to quote a little from their reporting to provide some context for our discussion²⁾the whole article is worth reading, once you have finished here, of course:

The FBI says the planes are not equipped or used for bulk collection activities or mass surveillance. The surveillance equipment is used for ongoing investigations, the FBI says, generally without a judge's approval. The FBI confirmed for the first time the wide-scale use of the aircraft, which the AP traced to at least 13 fake companies, such as FVX Research, KQM Aviation, NBR Aviation and PXW Services. "The FBI's aviation program is not secret," spokesman Christopher Allen said in a statement. "Specific aircraft and their capabilities are protected for operational security purposes."

That has got to be the best use of the adverb “generally” I have seen in years.  If the FBI has not asked for a single warrant for aerial surveillance, I supposed that would also be “generally without a judge’s approval.”

A little more from the AP report:

Evolving technology can record higher-quality video from long distances, even at night, and can capture certain identifying information from cellphones using a device known as a "cell-site simulator" — or Stingray, to use one of the product's brand names. These can trick pinpointed cellphones into revealing identification numbers of subscribers, including those not suspected of a crime.

Well then. I guess if you do not want people to know where you are, it is best to leave the cell phone at home³⁾and probably take the battery out when it is not in use.

 

Are we heading toward some horrid science-fiction nightmare of state aerial surveillance by drones?

Our own Senator Dean Heller to the rescue⁴⁾with co-sponsor Sen. Ron Wyden of the great state of Oregon! They announced 17 June that they introduced the “Protecting Individuals From Mass Aerial Surveillance Act of 2015.” But does the bill do what it says? Let us get under the hood and take a look.

We start with Section 3 that states an overview of the bill:

SEC. 3. PROHIBITED USE OF MAVDS⁵⁾aka drone or "mobile aerial-view device."  Apparently some folks find the word “drone” offensive, mostly those who sell drones. If they want us to stop using the term “drone,” they are going to need a much catchier acronym.

A Federal entity shall not use a MAVD to surveil property, persons or their effects, or gather evidence or other information pertaining to known or suspected criminal conduct, or conduct that is in violation of a statute or regulation.

For those of you reading carefully⁶⁾this is obviously all of our Clear Counsel law blog readers, it seems this statement declares that drones may not be used to break the law, which, as far as I know, does not need to be stated explicitly.  We are going to have to go deeper into the labyrinth to find out how protective this bill really is.

Sections 5 and 6 clearly state what federal law enforcement is not permitted to do with drones:

SEC. 5. BAN ON IDENTIFYING INDIVIDUALS.

(a) No Federal entity actor may make any intentional effort to identify an individual from, or associate an individual with, the information collected by operations authorized by paragraphs (1) through (3) of subsection (a), nor shall the collected information be disclosed to any entity except another Federal entity or State, tribal, or local government agency or department, or political subdivision thereof, that agrees to be bound by the restrictions in this Act.

SEC. 6. PROHIBITION ON USE OF EVIDENCE.

No evidence obtained or collected in violation of this Act may be received as evidence against an individual in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof.

 

Alright! Hope is on the way. Government actors may not “identify,” “associate,” or “collect information” about an individual with the use of drones.  Nor may the federal government use illegally obtained evidence by drone in the prosecution of an individual⁷⁾The old "fruit of the poisonous tree" doctrine is alive!.  Well I am glad we settled all that, now I can go back to writing snarky things about Kim Kardashian on the internets…wait, there's a catch? We best take a look at the Section 4 exceptions, in particular subsection 2, exigent circumstances:

(A) The use of a MAVD by a Federal entity when exigent circumstances exist. For the purposes of this paragraph, exigent circumstances exist when the Federal entity possesses reasonable suspicion that under particular circumstances, swift action is necessary

(i) to prevent imminent danger of death or serious bodily harm to a specific individual; or

(ii) to counter an imminent risk of a terrorist attack by a specific individual or organization;

(iii) to prevent imminent destruction of evidence; or

(iv) to counter an imminent or actual escape of a criminal or terrorist suspect.

Well hope seems to have turned around and headed back from whence she came.  For those of you not familiar with the slow unraveling of 4^th Amendment protections through the courts, the term of art “exigent circumstances” may not mean much.  For law enforcement, “exigent circumstances” are everything, and unfortunately, have been the basis of the undoing of the warrant requirement of the 4^th Amendment.  For instance, law enforcement does not need a warrant to search a car suspected of containing contraband because of said “exigent circumstances”⁸⁾See Wikipedia’s motor vehicle exception for a summary .  The “exigent circumstances” justification has also been applied by law enforcement to enter/search a home when they reasonably suspect that evidence is going to be destroyed ⁹⁾See United States v. Reed, 935 F. 2d 641 [4th Cir.], cert. denied, 502 U.S. 960 [1991].

Before we get too upset, it is not reasonable for us to expect our senators to ameliorate a near century’s worth of case law that has diluted the meaning of the 4^th Amendment through a bill regulating drones.  Though, it would be nice if the subject came up sometime soon.

In addition to the exigent circumstances in the above quoted sections, exceptions to the prohibitions of Section 5 and 6 include permitting drones for:

Assisting Border control

Fighting forest fires

Researching nature and wildlife

Surveying public lands

Hard to argue with these exceptions.  I congratulate Sen. Heller for taking on a tough political issue that contains some risk¹⁰⁾the worse kind of risk at that, a Rumsfeldian “unknown unknown”.  We will keep an eye on the bill and see how it is altered as it passes through the legislative process.  In part II of our discussion, we will examine case law to determine how necessary this legislation is.

Read Senator Heller's bill here