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Wednesday, April 29, 2015

North Dakota's New Law Restricting Law Enforcement Drones

North Dakota's governor recently signed this bill (H.B. 1328) restricting the government's use of drones, which makes North Dakota the most recent state to restrict law enforcement's use of drone technology to obtain information and evidence. The Tenth Amendment Center and The West Wire News note this development and argue that the law is a positive step that will protect privacy and thwart federal surveillance efforts.

As far as state laws restricting government drone use are concerned, North Dakota's is one of the stricter laws I've seen. North Dakota's new law requires law enforcement agencies to obtain a warrant before using drones to gather information. Beyond satisfying constitutional requirements, applications for drone warrants need to specify how long the drone would be used, the locations where the drone would operate, and how long any information gathered would be retained.

Section Two, subsection two notes that prosecuting agencies may still use drone-obtained information "in accordance with exceptions to the warrant requirement." But notably, this subsection does not permit the use of information obtained in accordance with judicially-recognized exceptions to the warrant requirement. Most activities drones can observe could be viewed by the general public, Accordingly, laws that contain exceptions to warrant requirements based on judicially-created doctrine end up having very little effect on what law enforcement agencies can do, as I have argued at length in this article and in posts here and here. By omitting the qualifier "judicially-recognized," the law presumably limits any exceptions to the warrant requirement to the exceptions listed in the statute.

And the exceptions listed in the statute are quite narrow. Section Four states that warrants are not required when national borders are being patrolled, when there is "reasonable suspicion that absent swift preventative action, there is an imminent danger to life or bodily harm," when responding to natural disasters, or when using drones for research and development purposes. Notably, this law does not contain exceptions permitting law enforcement drones in situations where a suspect or inmate is fleeing police custody or to document traffic collision or crime scenes.

I think that some of these missing exceptions could enhance North Dakota's law enforcement agencies' ability to use new technology without having much of an impact on privacy. But unlike some other states that have passed laws purporting to restrict government drone use, North Dakota's law does indeed impose strict limits on law enforcement agencies' use of drone technology.

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