Privacy Concerns Fuel Drone Restrictions

http://www.reuters.com/article/2013/04/12/us-usa-drones-idaho-idUSBRE93B03S20130412

Last week, Idaho legislators passed a bill which would restrict law enforcement use of drones, becoming the second State behind Virginia to pass such similar legislation. The law requires police to obtain a warrant in order to use drones in the collection of evidence with regards to suspected criminal activity. Further, police are prohibited from using drones to surveille individuals or their property without written consent. However, exceptions exist. If the drone is being used with regards to illegal drugs, public emergencies or search and rescue missions no warrant is required. Legislators cite "high-tech window peeping" as a primary concern in passing the bill. This bill adds extra restrictions to the use of drones on top of Federal restrictions which limit the number of drones which can fly in U.S. airspace.

The exception for illegal drugs both makes sense while creating concern. The article cites finding illegal marijuana fields as a benefit which could come from using drones. From a Fourth Amendment perspective this is not that troubling considering a precedent exists which does not apply Fourth Amendment protection to open fields, so long as they are not "curtilage" of the property. Oliver v. United States, 466 U.S. 170 (1984).  However, the exception does not seem constrained to only searching for fields with drugs. Thus, a scenario could  be imagined where drones are laying watch on a street corner suspected of drug dealing. Or a drone could follow a suspected drug dealer continuously and relentlessly. The use of drones for these purposes seems extremely more intrusive and goes directly against what the legislators wanted to prevent in passing the bill. High-tech window peeping, and stalking seems to be OK with the legislator so long as it is a suspected drug dealer who is being spied upon.

The opportunity for abuse seems possible within the latter two exceptions as well. Search and rescue missions could turn into continuous surveillance of suspected kidnappers or those who are believed to know valuable information. Further, the public emergency language is broad enough that that its not clear exactly when this exception would apply. When would crime become a troublesome enough to become a public emergency is unclear. These three exceptions could, and are, being completed by individual police officers without drones currently. However, the ease and convenience which drones could complete these tasks is especially concerning

Further, it is unclear what type of warrant is required. While no "Super warrant" requirement is mentioned, it would seem prudent to have a stricter warrant requirement for drones, similar to what was done with ECPA. Further, no private right of action exists. Without this higher standard, the warrant requirement does not seem like that big of a barrier for police to get around. If the legislators are truly concerned about individual privacy infringement with the use of drones, modeling a bill similar to the ECPA requirements would make sense. Ultimately, the bill is a step in the right direction. While it is unclear exactly what effect the bill will have on the use of drones, these initial restrictions are necessary as the use of drones by law enforcement becomes increasingly a reality.