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Drones’ surveillance of farmlands ignites debate on privacy invasion

In a quest to defend the rights of Americans outlined in the Fourth Amendment, a seeminglyunlikely partnership between a Republican representative and the American Civil LibertiesUnion (ACLU) geared up bipartisan support to pass a bill that would limit the acquisition anduse of surveillance drones by state and local public agencies.

As policy bills’ cut-off loomed, the House Public Safety committee was able to hear publictestimony on and vote 9-1 the proposed legislation out of committee and onto House RulesCommittee Thursday.

What sparked the House bill was a policy adopted by the Washington State Farm Bureau(WSFB) in November last year to regulate the use of drones to survey farmland without theexpress consent of the landowner.

As early as August 2012, several national law enforcement agencies had requested that statesadopt drone acquisition and usage guidelines as the technology becomes more and moremainstream.

Rep. David Taylor (R-15th District, Moxee), prime sponsor of HB 1771, said that theunregulated, unwarranted surveillance by drones, or unmanned aerial vehicles (UAVs), flies inthe face of constitutional freedoms.

“[The bill] attempts to address and establish clear guidelines and sideboards to protect publicsafety, protect our Constitutional rights and limit the liability on taxpayers,” he said.

The bill calls for public agencies, such as state departments or local law enforcement, that wishto employ drones for public safety use must receive legislative approval, be that either the stateLegislature or local government officials.

There is one major exception, however. UAVs may be used without explicit permission inthe event of an emergency, such as the use of drones during search and rescue efforts, in thepursuit of dangerous criminals or finding missing children. In order to gain access to informationcollected by UAVs, an agency must issue either a criminal, administrative or inspection warrant,depending on the nature of the case. Data collected that was not significant to an ongoing casewould need to be destroyed, following specific timelines delineated in the bill.

The use of UAVs for training purposes over an existing military installation in the state wouldalso be permitted.

The concern over liability is the cost accrued and paid by taxpayers due to lawsuits filed againstagencies when individuals feel their constitutional rights have been violated by an agency’s useof UAVs to track (inadvertently or intentionally) them.

However, some opponents said that restricting the use of UAVs inhibits law enforcementofficials from adequately protecting others.

Mitch Barker of the Washington Association of Sheriffs and Police Chiefs (WASPC) assertedthat the proper definition of warranted drone use would be better left up to the courts rather thangoverning bodies. While he said he does not mind some regulation, HB 1771 goes too far andunreasonably curbs the effectiveness of law enforcement.

“We’re fine with sideboards, but this is four walls and a ceiling,” he said.

But Taylor said that his bill is reasonable and is intended to protect an individual’s right toprivacy. The fact that agencies may have to do some extra planning in order for the Legislatureto approve UAV usage wouldn’t necessarily be a bad thing, he believes. According to the Moxeerepresentative, this provides an added and essential check and balance.

“Everyone wants law enforcement to be able to do their job,” he said. “We just want them to doit within the bounds of the law.”

He added, “It would take some planning on the part of the agency, which I don’t think that’s abad thing. They already have management plans.”

Adding to the debate, Mike German, senior policy counsel to the ACLU and former specialagent to the Federal Bureau of Investigation, said that waiting for the courts to decide on theappropriate limits of UAV deployment would mean waiting for a victim of undue surveillance tofile a case. Moreover, an intrusion of privacy would have to occur prior to the judiciary steppingin.

Following the public hearing on the proposed legislation, Taylor said, “I find it interesting thatthose that are opposed to it are law enforcement. So, that would suggest to me that they’re moreworried about their ability to use drones as they see fit and less worried about the constitutionalprotections we’re trying to address.”

Sponsor of a similar bill in the Senate, Sen. Maralyn Chase (D-32nd District, Shoreline), echoedTaylor’s sentiments.

“The rights of the citizens to privacy are more important than our staff to be inconvenienced byhaving to go get a warrant,” she said.

German said that due to evolving technology concerning UAV design and function, it isimportant that public policy debate keeps pace with these rapid enhancements. As dronesbecome cheaper and more available in the markets for domestic use, stalling on the issue ofsurveillance will eventually become too little, too late, he stated.

But some claimed policy shouldn’t be aimed at a specific technology.

James McMahan of the Washington Association of County Officials said that it doesn’t matterif it’s a helicopter or a drone watching over someone. Policy should address the parameters for awarranted search, not limit the technology by which an agency can conduct a search.

“A search is a search, regardless of the technology,” he said.

There is a clear difference between helicopter surveillance and UAV surveillance, said German’sACLU of Washington colleague Shankar Narayan. A helicopter is easily detected, he explained.

"You don't know when a dragonfly-sized drone is hovering outside your window," he asserted.

Narayan added that regulations imposed by the law would increase public trust in lawenforcement as citizens recognize the effort made by officials to protect not only public safetybut individual liberties as well.

One other concern was that the use of drones for patrolling during non-emergency cases wouldrestrict law enforcement from improving public safety. An example provided by Rep. BradKlippert (R-8th District, Kennewick) was the increase in thefts in parking lots during holidayshopping. It is no doubt that with the use of drones, law enforcement would more easily be ableto detect criminals, he suggested.

The idea, however, of public drone surveillance when criminal activity is not known to beoccurring still brought some concerns.

Sam Bellomio with StandUP-America said, “It’s ridiculous how anything we do could beconsidered potential criminal activity.”

Rep. Matt Shea (R-4th District, Spokane Valley), Taylor’s accomplice on many pieces oflegislation the two have proposed this session, said that HB 1771 helps address the much-neededgive-and-take between public safety and one’s right to privacy.

“There always needs to be a balance in this country between freedom, liberty, privacy and alsolaw enforcement and military applications for the use of drones,” said Shea.

While concerns voiced Thursday are not all fully addressed in the bill, an overwhelmingmajority of committee members chose to pass it onto the Rules Committee with the hope that viaamendments, remaining concerns of different agencies may be addressed.

“We've been working on the issue for several months and we have a lot of work left to do, butwe passed the first hurdle today. It's a great day for freedom and liberty in Washington State,”said Taylor.

Chase’s companion Senate bill was given a public hearing Wednesday, but it will not continuethrough the legislative process this session.

 

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