Lawmakers on Wednesday approved a measure that would regulate law enforcement's use of drones, including requiring agencies to get warrants for most uses of the unmanned aerial vehicles.
. . .
The bill requires the government to get a warrant to use drones for surveillance, except in cases of envronmental emergencies, such as oil spills or chemical spills.
The bill is AB 1327. The most recent text of the bill is available here.
I have blogged previously about California's various drone law proposals. In this post I describe the earlier version of AB 1327, and in this post, I evaluate the bill and the challenges it may face.
As I mentioned in those previous posts, AB 1327 introduces notable restrictions on the government's use of drones because its warrant requirement is not limited to situations where those monitored by the drones have a reasonable expectation of privacy. Were the bill's application restricted to situations where people have a reasonable expectation of privacy (as would be the case with SB 15, an alternate bill regulating drone use), the bill would make very little practical difference to what law enforcement officers could do. This is because the government would be able to use drones to view people's activities on the ground without raising any constitutional problems, since the government is permitted by the Fourth Amendment to view people from helicopters.
Much of AB 1327 remains the same, so most of my prior commentary applies to the current version of the bill. In this post, I would like to share a few reactions to this version of the bill, and some predictions of whether it will be signed into law.
I noted in my earlier posts that AB 1327 could limit law enforcement's use of drones in an overly strict manner. For instance, the bill apparently restricts law enforcement officers from using drones to collect information regarding traffic accidents -- and only allows drone use insofar as it the information collected is used to assess whether first responders are necessary. Despite some revision to the provisions regarding traffic accident surveillance, the final bill remains restrictive and would not permit officers to use drones to diagram accidents and collect data for use at trial.
Subsection (e) is a welcome addition to the bill. That subsection states:
(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.This subsection is broadly worded, and gives the government fairly wide latitude to use drones for a variety of potential purposes. Drone technology is still developing, and it may have uses that have not yet been realized. This subsection gives the government the ability to use drones in situations "unrelated to the gathering of criminal intelligence," which leaves a potential avenue for the government to take advantage of this technology in a broad range of situations.
I noted in my earlier post that if this bill were to restrict the use of evidence at trial, it would need to get past California's Truth in Evidence Rule, which requires that any new rule excluding evidence at criminal trials must pass by a two-thirds vote in both branches of the California Legislature. A quick look at the bill's history reveals that the bill meets this requirement: Reuters reports that the Senate passed the bill with a 25-8 vote, and the Los Angeles Times reports that the Assembly passed the bill with a 56-1 vote.
The bill now goes before Governor Jerry Brown for signing. Governor Brown may end up vetoing the bill. I raise this possibility based on his veto of an earlier bill that would require law enforcement officers to obtain warrants before seeking electronic information. Like that earlier bill, AB 1327 involves a similar, broad creation of a warrant requirement that would go beyond what the Fourth Amendment requires. While the veto may be overridden by a two-thirds vote of the Assembly and Senate, and while the bill has obtained more than these percentages of votes in the Assembly and Senate, veto overrides in California are extremely rare.
Of course, the entirety of that last paragraph was my attempt to read the tea leaves of California's executive-legislative interactions -- and I don't claim to be an expert at making those sorts of predictions. Because of this, I will continue following this story to see if Governor Brown ends up signing AB 1327. If he does, then law enforcement agencies that hope to use drones will need to pay serious attention to this bill's provisions in order to avoid the exclusion of drone-obtained evidence.