California Gov. Jerry Brown vetoed a bill over the weekend that would have forced law enforcement to obtain a search warrant in order to use unmanned aerial vehicles — in other words, drones — to conduct aerial surveillance of potential suspects.
In a brief statement to the state assembly Sunday, Brown said the bill went too far in proscribing drone surveillance, even though he admitted there are “undoubtedly circumstances where a warrant is appropriate.”
But for now, it will be up to the police to determine the appropriateness of those circumstances.
“I am returning Assembly Bill 1327 without my signature,” wrote Brown:
This bill prohibits law enforcement from using a drone without obtaining a search warrant, except in limited circumstances.
There are undoubtedly circumstances where a warrant is appropriate. The bill’s exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution.
The full text of the bill can be found here. Here’s a rundown of the relevant portion:
TITLE 14. UNMANNED AIRCRAFT SYSTEMS
1. (a) A public agency shall not use an unmanned aircraft system, or contract for the use of an unmanned aircraft system, except as provided in this title. This title shall apply to all public and private entities when contracting with a public agency for the use of an unmanned aircraft system.
(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.
(c) A law enforcement agency, without obtaining a warrant, may use an unmanned aircraft system in all of the following circumstances:
(1) In emergency situations if there is an imminent threat to life or of great bodily harm, including, but not limited to, fires, hostage crises, “hot pursuit” situations if reasonably necessary to prevent harm to law enforcement officers or others, and search and rescue operations on land or water.
(2) To assess the necessity of first responders in situations relating to traffic accidents.
(3) (A) To inspect state parks and wilderness areas for illegal vegetation or fires.
(B) For purposes of this paragraph, “wilderness areas” means public lands without permanent improvements or human habitation.
(4) To determine the appropriate response to an imminent or existing environmental emergency or disaster, including, but not limited to, oils spills or chemical spills.
(d) A public agency other than a law enforcement agency may use an unmanned aircraft system, or contract for the use of an unmanned aircraft system, to achieve the core mission of the agency provided that the purpose is unrelated to the gathering of criminal intelligence.
(e) A public agency that is not primarily a law enforcement agency, but that employs peace officers or performs functions related to criminal investigations, may use an unmanned aircraft system without obtaining a warrant to achieve the core mission of the agency provided that the purpose is unrelated to the gathering of criminal intelligence, and that the images, footage, or data are not used for any purpose other than that for which it was collected.
1. A public agency that uses an unmanned aircraft system, or contracts for the use of an unmanned aircraft system, pursuant to this title shall first provide reasonable notice to the public. Reasonable notice shall, at a minimum, consist of a one-time announcement regarding the agency’s intent to deploy unmanned aircraft system technology and a description of the technology’s capabilities.
2. (a) (1) (A) Except as permitted by this title, images, footage, or data obtained by a public agency, or any entity contracting with a public agency, pursuant to this title shall not be disseminated to a law enforcement agency unless the law enforcement agency has obtained a warrant for the images, footage, or data based on probable cause pursuant to this code, or the law enforcement agency would not have been required to obtain a warrant to collect the images, footage, or data itself, as specified in Section 14350.
As you can see, the law left plenty of room for useful exceptions that don’t entail secret, indiscriminate spying: disaster assessment, traffic accidents, “hot pursuit” situations involving threats to public safety, wildfire surveillance and, after all that, criminal investigations with a search warrant.
“A warrant requirement does not prevent law enforcement from using drones, which are cheap and useful technology; it checks the scope of drone surveillance by involving legal standards and a judge,” Slate’s Margot E. Kaminski wrote in anticipation of the governor’s decision.
“California’s drone bill is not draconian. It includes exceptions for emergency situations, search-and-rescue efforts, traffic first responders, and inspection of wildfires. It allows other public agencies to use drones for other purposes — just not law enforcement.”
California Assemblyman Jeff Gorell, a Republican from Camarillo and the bill’s sponsor, told The Los Angeles Times that Brown had sided with the wrong side in the still-emerging codification of electronic privacy law.
“We’re increasingly living in a surveillance society as the government uses new technology to track and watch the activities of Americans. It’s disappointing that the governor decided to side with law enforcement in this case over the privacy interests of California,” Gorell said.
According to Ars Technica, 10 other states already deny police the authority to conduct warrantless drone surveillance: Florida, Idaho, Illinois, Indiana, Iowa, Montana, Oregon, Tennessee, Utah and Wisconsin.