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Wednesday, June 11, 2014

California's Proposed Drone Laws Part Three: Policy, Statutory, and Constitutional Concerns

In Parts One and Two of my discussion of California's proposed drone laws I described the content of California's two proposed bills for the regulation of drones, SB 15 and AB 1327. Here, I evaluate those two bills and discuss whether they are good policy, and whether they will run into any statutory or constitutional issues.

The Bills' Impacts on Law Enforcement Abilities and Individual Privacy

Both of California's proposed drone laws purport to protect the privacy of California citizens from the intrusive use of drones. And both laws contain restrictions on the use of drones by law enforcement officers and private citizens.

SB 15 requires that law enforcement officers obtain a warrant before using drones in a manner that would infringe on people's reasonable expectations of privacy. While this may sound like a regulation that respects privacy, this bill would have no practical impact on the scope of what law enforcement officers can do. When officers act in a manner that intrudes on a reasonable expectation of privacy, they are engaging in a Fourth Amendment search. This means that they need a warrant, or there must be some exception to the warrant requirement, like exigent circumstances (which is also an exception to SB 15's warrant requirement).

Because of SB 15's permissive language, its restrictions on law enforcement's use of drones don't seem to add anything to existing Fourth Amendment protections.

AB 1327 has broader language than SB 15. AB 1327 requires a warrant for law enforcement's use of drones unless one of several potential exceptions apply, including an emergency situation or a disaster response scenario. While this bill certainly imposes more of a restriction on law enforcement than SB 15, the restriction also prevents officers from using drones in useful situations that would not typically be viewed as invading privacy, such as for convenient, speedy diagramming of traffic accidents.

In terms of the bills' restrictions on private use of drones, they are almost identical. Both prohibit the use of drones in manners that would invade privacy in violation of California's criminal laws. SB 15 goes a little bit farther and adds the use of drones to California's statute that provides a civil action for violations of privacy.

But I don't think that including drone-specific language in invasion of privacy statutes will criminalize any activity that wouldn't already violate the laws. Under current laws, if somebody uses drones in an offensive manner to spy on somebody in violation of their protected privacy interests, current statutes will likely criminalize this activity. The statutes prohibit invasive surveillance that involves visual and auditory enhancing devices, and a drone with a camera or microphone will probably be interpreted to be one of these enhancing devices.

In sum, SB 15 does not seem to add any meaningful restrictions on law enforcement's use of drones. AB 1327 does make a difference, but the restrictions may restrict some beneficial uses of drones.

The Lack of a Statutory Exclusionary Rule: Interpretive and Constitutional Issues

A technical problem with both of these bills is that they do not contain provisions restricting the use of evidence collected through the use of drones once that information has been collected. While the bills detail when warrants are required and exceptions to the warrant requirements, the bills are almost entirely silent on what the government can do with information once it is collected. Most state restrictions on drones that require law enforcement to get a warrant before collecting information also contain provisions that information collected without a warrant is inadmissible at trial.

The bills' failure to mention the exclusion of evidence seized without a warrant is not particularly surprising, since Penal Code section 1538.5 gives defendants the mechanism to move for the suppression of evidence that has been seized without a warrant. Those sponsoring the drone regulations probably think that the exclusionary rule of section 1538.5 applies to the warrant requirements in the drone regulations. But section 1538.5 only calls for the exclusion of evidence seized without a warrant when the warrantless search or seizure is unreasonable. This would probably be consistent with SB 15, which requires warrants for government drone use in situations where the defendant does not have a reasonable expectation of privacy

But the seemingly broader restriction in AB 1327 may run into interpretive and constitutional problems. On the statutory level, AB 1327 does not restrict itself to "unreasonable" searches, so it is not clear that the exclusionary rule of Penal Code 1538.5 would apply to AB 1327's warrant requirement.

But more significantly, if AB 1327 seeks to exclude evidence beyond those exclusions that are required by the Fourth Amendment to the U.S. Constitution, the bill might run afoul of Article I, section 28 of California's Constitution (or the "Truth in Evidence" rule). The Truth in Evidence rule requires a 2/3 vote of the legislature for any law that would expand rules excluding the use of evidence in trials beyond U.S. constitutional protections (See, e.g., People v. Robinson, 47 Cal. 4th 1104, 1119 (2010)). If the warrant requirement in AB 1327 is to be read to exclude evidence beyond existing Fourth Amendment protections, both branches of the California legislature will need to pass this law by a 2/3 margin or more in order to get past this constitutional hurdle.

In short, it is not clear whether AB 1327 can be feasibly interpreted as calling for the exclusion of evidence that is collected by drones without a warrant. And if the bill is interpreted as requiring exclusion in situations where those monitored by drones do not have a reasonable expectation of privacy, then the bill will need to be passed by a 2/3 margin or more in both branches of California's legislature in order to get around California's Truth in Evidence requirements.


SB 15 may be more likely to pass, since it does not require more evidence to be excluded in trial proceedings than is already required by existing Fourth Amendment precedent. AB 1327 be more appealing to privacy advocates since its restrictions are more meaningful, but unless the law is passed in accordance with California's Truth in Evidence rule, the law will either be struck down by the courts, or interpreted in a manner that does not require the exclusion of evidence obtained through the use of drones.

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