Alaska Law Purports to Restrict Government Drones, But Does it Really?

Earlier this summer, Alaska's governor signed HB 255, a bill regulating the government's use of drones. As of October 26, that bill is now law.

You can find the full text of the bill here. The most noteworthy portion of the bill adds Alaska Statutes sections 18.65.900 - 909, which are the provisions pertaining to government drone use. Last I checked, these statutes are still not up on Westlaw or on any website displaying the Alaska Statutes, but the legislature's website makes it pretty clear that this bill was signed into law and that its effective date was three days ago. I will therefore refer to Alaska's drone law by the numbers of the sections that HB 255 added to the statutes.

Privacy advocates typically argue that restrictions on government drone use protect citizens' privacy, since drones could be used to undertake continuous surveillance of people's public movements and homes. Privacy advocates argue that warrants should be required for law enforcement agencies to use drones.

At first glance, it looks like privacy advocates have gotten what they want with Alaska's drone law. Section 18.65.900 prohibits government drone use unless that use falls under the exceptions specified in the bill. Section 18.65.902(1)(A) states that government agencies may use drones in criminal investigations as long as the drone use takes place "under the express terms of a search warrant issued by a court."

But Section 18.65.902(1)(B) states that government agencies can use drones for criminal investigations as long as the drone use is "in accordance with a judicially recognized exception to the warrant requirement." As I have previously discussed at length in the context of California law, and in other discussions of drone laws here and here, this sort of provision effectively removes any meaningful restriction that this law could have on law enforcement drone use. Under existing Fourth Amendment case law, police do not need a warrant to track somebody's movements from the air, nor do they need a warrant to conduct surveillance of a person's yard as long as the police are flying in commonly used airspace.

Because the Alaska law permits existing judicial exceptions to the warrant requirement, the bill would not meaningfully restrict law enforcement agencies from using drones to track people's public movements or conduct surveillance of people's homes. While law enforcement agencies may feel that this is a favorable outcome, it carries the risk of putting more pressure on judges to restrict exceptions to the warrant requirement in cases of government drone use -- which could cause this law's broad allowance on government drone use to backfire.

This is also not to say that privacy advocates haven't gained anything through this legislation. Section 18.65.901(a)(5)-(6) would require law enforcement agencies to keep records of their drone use, which would include the time, date, and purpose of the flights, and be open to audit. If the fears of privacy advocates were realized, and the government ended up using drones for pervasive surveillance, this use would be reflected by these records, which could prompt policy changes in the future.

Additionally, I think that this law could have been better drafted. Parts of the law are written in such a slipshod manner that they have substantive implications for the law's operation. Consider, for example, section 18.65.901(a)(7), which requires law enforcement agencies to "establish a method for notifying the public of the operation of an unmanned aircraft system, unless notifying the public would endanger the safety of a person."

Does this mean that law enforcement agencies will be required to use this notification method when the method is in place? It doesn't say that. But if the law did require the use of that notification method, would notification be required in all cases where the "safety of a person" was not endangered? This would seem to limit the effectiveness of drone use in, say, drug crime investigations if the notification happened before, rather than after, the use of the drone. And if notifying the public of the government's drone use would endanger the safety of a person, should law enforcement agencies not notify the public, or should they cease establishing a method for notifying the public altogether? The wording of the subsection seems to call for the latter meaning.

Finally, it seems downright inconsiderate to those reading the statute to require a search warrant for law enforcement drone use in criminal cases, but then permit that drone use in non-criminal situations where no "unwarranted" invasion of privacy will occur. While I get the meaning of this subsection, and while I think that this section of the statute can be applied without any serious problems, the inconsistent uses of the term "warrant" in the same subsection of the law lead me to conclude that the drafters should have put a bit more thought into the wording of the statute.