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McAuliffe Expands Law Enforcement Access to Drones

April 2, 2015

Brandon Drone Photo

A DJI Phantom II, a consumer quadcopter with a small high definition video camera, flown by hobbyist Brandon Hambright.

Gov. McAuliffe’s Amendments Expand Law Enforcement Access to Drones

By Craig Zirpolo
Capital News Service

RICHMOND – Law enforcement officials could use drones more freely if the General Assembly approves legislative amendments proposed by Gov. Terry McAuliffe.

McAuliffe surprised privacy advocates by amending language to facilitate law enforcement access to unmanned aircraft in SB 1301, introduced by Sen. Donald McEachin, D-Richmond, and HB 2125, sponsored by Del. Ben Cline, R-Rockbridge. The original legislation was unanimously approved by the House and Senate.

The bills initially indicated that government agencies would need a search warrant to use drones for “law enforcement” activities. But McAuliffe changed “law enforcement” to “active criminal investigations.” Some privacy advocates argue that this change might allow law enforcement officials to use drones without a warrant for surveillance and other purposes outside of active investigations.

The legislation already says warrants would not be needed for government agencies to fly drones for “damage assessment, traffic assessment, flood stage assessment, and wildfire assessment,” but the full range of exceptions is open to interpretation.

The governor also removed an outright ban against evidence gathered by drones flown by law enforcement authorities without a warrant. McAuliffe cited the existing legal principles governing the suppression of evidence as adequate to cover overly intrusive use of drones by the government.

McAuliffe’s changes did not upset McEachin. The senator called the governor’s amendments clarifications meant to reinforce the initial intent of the bill.

“If you’re going to conduct a criminal investigation using a drone, you still need to get a warrant,” McEachin said. “If you’re engaged in some other sort of activity that wouldn’t normally require a warrant, you won’t need a warrant.”

As an example, McEachin said, suppose a fire department were using unmanned aircraft to film a fire and incidentally filmed a potential arson suspect. The original bill would outright prohibit the submission of that video as evidence, he said, whereas the amendment would allow the state to make that determination on a case-by-case basis.

But privacy advocates like the American Civil Liberties Union of Virginia criticized McAuliffe’s amendments as “effectively gutting” the broad warrant requirement.

“The proposed amendments you have offered protect the ability of law enforcement to engage in mass surveillance but offer no protection for the privacy of the Virginians they serve,” Claire Guthrie Gastañaga, director of the state ACLU branch, said in a letter to McAuliffe.

Beyond requiring law enforcement officials to obtain warrants, the bills would grant exceptions for drones used in search and rescue and other emergency situations and also allow for drone use by research institutions, universities and hobbyists. The bills specifically prohibit arming drones with any kind of weapon.

A moratorium on the use of drones by law enforcement agencies was passed the General Assembly in 2013 and will expire in July. The bills by McEachin and Cline would pick up where the moratorium leaves off.

The bills attracted bipartisan support. Former Attorney General Ken Cuccinelli, the 2013 Republican nominee for governor, joined Gastañaga, in writing an op-ed for the Richmond Times-Dispatch arguing against McAuliffe’s proposed amendments.

“These changes, if adopted, would have the same effect as an outright veto of this legislation intended to establish 21st century privacy protections not offered by aging court interpretations of Fourth Amendment warrant requirements,” Cuccinelli and Gastañaga wrote.

As Virginia and other states debate the protection provided by existing privacy laws against technological advancements like drones flown by law enforcement, a similar debate has been occurring at the nation level.

The U.S. Senate Subcommittee on Aviation Operations, Safety and Security held a hearing on the issue last week. Professor John Villasenor, a senior fellow at the Brookings Institution, argued that the current framework for privacy law established by the Fourth Amendment is sufficient to defend the public from unreasonable searches by unmanned aircraft systems operated by government officials.

“When considering the possibly of new privacy laws relating to UAS, it is important not to lose sight of the protections we already have,” Villasenor said. “I believe that our existing legal framework will provide substantially more protection against privacy-violating misuses of UAS than is commonly recognized.”

The U.S. Supreme Court has not ruled on a case involving drones and law enforcement, but it has decided similar cases regarding images captured from manned aircraft during criminal investigations.

In two cases in 1986, the high court ruled in favor of the government’s right to use aerial imagery in law enforcement:

  • In California v. Ciraolo, the Supreme Court ruled that images from a manned aircraft were a reasonable search as long as the images were obtained from “public navigable airspace . . . in a physically nonintrusive manner.”
  • In Dow Chemical Co. v. United States, the justices ruled that a chemical facility was different from a home, which enjoys a “reasonable expectation of privacy.” Because of the plant’s layout, the justices determined that it was more akin to an “open field,” which does not have the same expectation of privacy. The justices ruled that those areas were “open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras.”

Privacy advocates fear that these precedents will not sufficiently protect privacy. In her letter to McAuliffe, Gastañaga said prior Supreme Court cases put Virginians at risk for privacy abuses and mass surveillance.

“The 21st century demands that we update our laws to ensure that Virginians’ privacy is not undermined every time law enforcement deploys a new technology,” Gastañaga said.

The General Assembly will consider McAuliffe’s recommended amendments, as well as bills he vetoed, when legislators hold their one-day “reconvened session” at the Virginia Capitol on April 15.

The amendments proposed by the governor need a simple majority approval from both the Senate and House to become law. If the amendments do not win approval from both chambers, the legislation would go back to the governor to be signed or vetoed in its original form.