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Tell Governor Brown: No Warrantless Drones For California Cops

DEEPLINKS BLOG
September 18, 2014

An important California bill that would require warrants for law enforcement use of drones is currently sitting on Governor Jerry Brown’s desk. Unfortunately, there’s no guarantee that Gov. Brown will sign AB 1327, which passed the California legislature this August. EFF has long held that a warrant requirement is an essential component of any drone legislation, so while some of the bill’s language is imperfect, we encourage the Governor to sign the bill and ask concerned Californians to do the same.

One way the Brown administration gauges public support for a bill is through Twitter, so we've made it easy for you to send him the following message:

No warrantless drones for California cops! @JerryBrownGov, please sign AB 1327 to protect privacy in CA: https://eff.org/r.86a1

What would our ideal drone legislation look like? At the least, it should meet these three criteria:

  1. require that law enforcement obtain warrants before using drones in investigations to protect the Fourth Amendment rights of citizens from overbroad or undue data collection;
  2. hold commercial drone operators to established privacy standards and require disclosure of the details of their operations; and
  3. strike an appropriate balance between privacy and First Amendment protected activities such as newsgathering (if regulating private and media use of drones).

AB 1327 meets the first of these requirements. It also meets the third prong by default, because it doesn’t address private drone use and so doesn’t hinder the use of drones for First Amendment protected activities.

The heart of the bill is in section 14350(b):

(b) A law enforcement agency may use an unmanned aircraft system if it has obtained a warrant based on probable cause pursuant to this code.

There is a danger of loopholes, unsurprisingly. Law enforcement could try to avoid getting a warrant by “outsourcing” its surveillance to other agencies, which could then pass the collected information back. The bill attempts to address that problem by prohibiting other agencies from sharing footage, data, or images with law enforcement agencies that would have needed a warrant to collect that data and have not gotten one.

The bill also lists some explicit exceptions to the warrant requirement for law enforcement. Some of these are reasonable, mirroring existing warrant exceptions, like “emergency situations if there is an imminent threat to life or great bodily harm.” Similarly, there’s an exception to allow the use of a drone to determine the appropriate response to hazards like chemical spills.

Other provisions are more problematic. The bill lists uses that do not require warrants, and some are more obviously reasonable than others. For example, it allows the use of drones in state parks and wilderness areas to search for fires, but also to search for “illegal vegetation.” There’s another exception to allow warrantless use of drones “to assess the necessity of first responders in situations relating to traffic.”

Further, some missing definitions could lead to ambiguity in the future. For example, the bill allows non-law-enforcement agencies to use drones “to achieve the core mission of the agency.” Unfortunately “core mission” isn’t defined; while many activities fall clearly inside or outside that scope for a given agency, others might be in a grey area.

Despite those misgivings, it's definitely good that the bill requires public agencies to give notice that they plan to use drones. What’s more, it sets a statewide floor, while allowing local jurisdictions to pass more tailored regulations. Both of these provisions are essential in places like Los Angeles, San Jose, Berkeley, and Alameda County, where public outcries around drone acquisition and use have led to spirited discussions about drone use. And in Alameda County, at least, that discussion has halted the purchase of a drone.

While this bill could be stronger in some areas, it’s certainly preferable to unregulated, warrantless police drone use. Law enforcement agencies should be discussing their plans for drones with transparency and accountability, and in a way that allows community involvement, and a warrant requirement here is a no-brainer. Tell Governor Brown to stop warrantless drone surveillance by signing AB 1327.

No warrantless drones for California cops! @JerryBrownGov, please sign AB 1327 to protect privacy in CA: https://eff.org/r.86a1

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