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Friday, September 5, 2014

Why State Legislatures Should Regulate Government Drones

At Slate, Margot Kaminski writes in support of California's AB 1327 which would regulate the government's ability to use drones. From the article:

There are no guarantees of how courts will come out on drone use. Like GPS tracking, it’s a complex issue, and there are old cases giving little credence to the notion that we have privacy rights in public. But the newest Supreme Court cases push back against this, showing a more sophisticated understanding of dragnet digital surveillance and privacy.

One guarantee is that court decisions will take time—and there are costs to waiting for courts to make up their minds. In 2011, the California Legislature passed a bill requiring a warrant for the search of cellphones at the time of arrest. Gov. Brown vetoed it. It took three years for the issue to work its way up through courts, only for the Supreme Court to find this summer in Riley v. California that a warrant is required for exactly that kind of search. The opinion was 9–0. In the meantime, Californians were subject to unconstitutional searches without legal protection.

Alito, writing in U.S. v. Jones, noted that “[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.” I and 40 other law professors—in criminal procedure, privacy, and First Amendment law—have written to Brown in support of AB-1327’s warrant requirement. This is an example of good privacy lawmaking. People are concerned, and the California Legislature is responding.
I support state legislative efforts to regulate drone use because I think that regulating drones would be a dangerous enterprise if left up to the courts. I recently wrote an article where I make this argument in detail. I sent it to some law journals and I was waiting to post it on SSRN, but in light of Governor Jerry Brown's impending decision on whether to veto AB 1327, I have made a last minute, (probably) badly timed (Friday night?) decision to post the paper. It is available here, and here is the abstract:

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside. 
In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.

I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.
I will likely mention this article again next week at a more reasonable time, but I thought that I should mention it on the blog now. As is the case with any paper or post that I write, comments and criticism are welcome.

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