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Monday, April 14, 2014

Indiana Passes Law Restricting Government Drone Use, Password Requests, and Cell Phone Tracking

Indiana has passed a law that restricts the government's ability to use drones, request passwords, and track cell phones without a warrant. Reports on the law are available here and here. The full text of the law is available here.

The bill prohibits law enforcement officers from using drones to collect evidence. There are several restrictions to this ban: law enforcement officers may use drones in situations where exigent circumstances would justify a warrantless search, to prevent terrorist attacks, in search and rescue operations, in responding to a natural disaster, and in non-law enforcement related situations. Law enforcement officers may also collect information using a drone with the consent of the person whose property is viewed with the drone.

I have mentioned before that while I am generally in favor of defining limitations on government use of drones, overly broad restrictions may lead to unreasonable curtailment of government use of technology. In my opinion, Indiana's law generally seems to be okay, since it contains most exceptions I would want a drone-restricting law to have. The law would leave police unable to use drones to make effective, accurate visualizations of certain situations where use of a drone may be helpful, and where it would not be typically viewed as a privacy violation. For example, police responding to an accident may seek to have a drone diagram and photograph the scene from an aerial perspective. But this law would prohibit police use of drones for that purpose.

The bill also restricts officers' ability to request users' passwords for electronic devices. Searches of phones and computers tend to reveal far more information than searches of other containers, and cases that analogize these devices to containers or diaries tend to stretch the boundaries of metaphor. I am not sure if Indiana's law will add much to protections that users already have, however, since the presence of a password on a phone or computer would make that device analogous to a closed or locked container, meaning police would need to obtain a warrant to access those devices without the added protection of the law.

Finally, I want to highlight that the law restricts the government from using cell phone tracking technology without a warrant unless exigent circumstances demand the use of this technology. This restriction comes as more and more states are adding or considering adding warrant requirements to techniques that locate cell phones. The Massachusetts Supreme Court recently ruled that police need to get a warrant before collecting cell phone location information, in contrast to the Fifth Circuit's opinion that no warrant is needed to obtain this information.

This statute is a good example of how many difficult Fourth Amendment questions may end up being answered by legislatures rather than by the courts. As technology develops, Fourth Amendment precedent may not be sufficient to provide protection of privacy that most people desire. In light of this concern, the most desirable outcome is for states to develop laws to meet these concerns, rather than for courts to strain the boundaries of precedent. Indiana's law is a good sample of laws that we can expect more states to pass as this reality becomes increasingly apparent.

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