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Friday, August 29, 2014

Idaho's Sneaky Law on Drones

Before work begins, I am trying to quickly finish up and send out a paper on state regulations of government drone use. Part of this process involves my researching laws restricting drones that states have passed. I have blogged about many of these states, but I do not believe I have addressed Idaho's law until now.

Initially, I thought that Idaho's law regulating the use of drones was fairly restrictive. Here is the text of Idaho's restriction:

(2)(a) Absent a warrant, and except for emergency response for safety, search and rescue or controlled substance investigations, no person, entity or state agency shall use an unmanned aircraft system to intentionally conduct surveillance of, gather evidence or collect information about, or photographically or electronically record specifically targeted persons or specifically targeted private property including, but not limited to: 
(i) An individual or a dwelling owned by an individual and such dwelling's curtilage, without such individual's written consent; 
(ii) A farm, dairy, ranch or other agricultural industry without the written consent of the owner of such farm, dairy, ranch or other agricultural industry.
The law goes on to provide for statutory damages of $1,000 in the event of a violation of the law -- so even if somebody cannot point to personal harm from their being observed by a drone, that person will not need to prove damages in order to obtain a reward.

Gregory McNeal correctly points out that this law is very restrictive of private drone use. In particular, it would prevent private parties from using drones to obtain aerial photographs or information about agricultural industries. McNeal notes that this could prevent the discovery of illegal activities.

The part of the law that caught my attention, however, is that the bill contains an exception to the warrant requirement when the government is engaging in "controlled substance investigations." This means that quite a bit of government drone use will be unrestricted by the warrant requirement. The most likely scenarios in which I can foresee the government using drones is to fly over people's houses and yards, or to monitor the movement of suspects.

If the government uses a drone to look into somebody's yard to see if drugs are being grown there, this would not violate the statute's warrant requirement because this would be part of a controlled substance investigation. And if the government is tracking the movements of somebody suspected of trafficking drugs, the statute would not require the law enforcement agency to obtain a warrant before using drones to track that person's movements.

While the Idaho legislature may claim that it has taken action to curtail the government's use of drones, the careful wording of the bill means that law enforcement still has a great deal of leeway to use drones in criminal investigations.

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