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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.

Wednesday, April 22, 2015

Prison Security and Drone-Smuggled Contraband

Today's New York Times has this interesting article on the use of drones to smuggle contraband into prisons. It begins:

During the graveyard shift at 1:44 a.m., security cameras at the prison here picked up the blinking lights of an unidentified flying object approaching the facility’s fence. 
A corrections officer was dispatched to investigate, but by the time she got there, all she could see was a man running away into the dense forest that surrounds the prison. 
It was not until dawn that officers found a package that included a cellphone, tobacco and marijuana tangled in the power lines outside the prison and a small drone that had crashed in the bushes nearby. In the woods, investigators located a makeshift campground, the remote control device used to fly the drone, a bottle of grape-flavored Gatorade and drugs. 
“It was a delivery system,” said Bryan P. Stirling, the director of the South Carolina Department of Corrections, explaining how the drone’s operators had planned to send the contraband into the prison, the Lee Correctional Institution. “They were sending in smaller amounts in repeated trips. They would put it on there, they would deliver it, someone inside would get it somehow, and they would send it back out and send more in.” 
It is the high-tech version of smuggling a file into a prison in a birthday cake, and it underscores the headache that drones are now creating for law enforcement and national security officials, who acknowledge that they have few, if any, ways of stopping them.
The article goes on to explain various techniques that prisons are exploring for stopping drone delivery of contraband. One solution that may hold promise is "geofencing," or software that would render drones inoperable within a certain range of sensitive locations.

I have blogged before about incidents of attempted smuggling of contraband into prisons using drones. It is also worth noting the relatively recent incident where a meth-carrying drone crashed near the U.S. - Mexico border.

While drones may be useful for smuggling contraband over prison walls, flaws in this delivery system include drones' visibility and noisiness. As drone technology develops, however, drones may become a more effective means for circumventing security measures. Prison administrations would do well to explore geofencing technology sooner, rather than later, in order to head off this problem.

Sunday, April 12, 2015

Drones Banned Above "Game of Thrones" Set in Belfast

So reports Belfast Live:

Crafty Game Of Thrones fans have been thwarted from getting any sneak behind-the-scenes peeks after a ban on drones above the set. 
Signs erected close to the filming studios in Titanic Quarter, East Belfast, warn of a "no-fly zone" for the mini-crafts. 
And novice pilots are told they could face prosecution for invading the airspace above the studios without permission from the Civil Aviation Authority. 
The move came after sightings of drones above various sets of hit shows being filmed here. 
The security firm behind the signs said the flying of drones in the area poses a significant risk to people below. 
But the clampdown has also hit cheeky fans of Game Of Thrones plotting to catch a glimpse of scenes starring their heroes. 
A source told Belfast Live there were fears top secret plot details could leak out if drones were able to hover above the site.
This drone ban makes sense from a safety perspective. Flying drones over unsuspecting people can lead to injuries should the drones fall unexpectedly (as they occasionally do). And if those on the ground are celebrities, I wouldn't be surprised if people flying the drones end up flying closer to the ground in order to get better footage.

I am, however, a bit confused by the concern that these drones may lead to the leak of "top secret plot details." Game of Thrones is based on books that have already been written. Any details that these drones may reveal have presumably already been revealed to those who simply have taken the time to open the books.

Thursday, April 9, 2015

What is a Pond?

According to the Iowa Court of Appeals, a pond is "a body of water," and a contractor's building "a pond that does not hold water," amounted to nothing more than the construction of a dam.

Via Kevin Underhill's Lowering The Bar, I learned about this story of a recent Iowa Court of Appeals decision holding that a contractor's agreement to construct a pond left the construction company liable when the pond ultimately failed to hold water due to "a porous layer of shale" on the sides of the pond. Additional coverage of the case is available here. A direct link to download a pdf version of the opinion is available here.

The construction company, Reilly, argued that it had abided by the terms of its contract to produce a pond. But the court held that the waterless pond violated Reilly's express warranty of the quality of product it would provide to its customer, Bachelder:

Reilly does not quibble with Bachelder’s testimony that Reilly told him he could “do a pond” at the staked location on Bachelder’s property. In his testimony, Reilly agreed he intended the pond would hold at least enough water so that the tires placed on the bottom for fish habitat would be covered up. By definition, a pond is “a body of water.” See American Heritage College Dictionary 1062 (3d ed. 1993); see also Iowa Code §§ 455B.171(39) (defining “water of the state” as including ponds), 462A.2(15) (defining farm pond as “a body of water”). When Reilly agreed to construct a pond on Bachelder’s property, he was expressly warranting the pond would hold water. Otherwise, Reilly would have simply been constructing a dam, without any anticipation it would capture water to form a pond. (Footnote omitted)
  In the wake of this opinion it appears that a pond without water is not a pond at all under Iowa law.

Wednesday, April 8, 2015

FAA Increasing Enforcement Efforts Targeting Commercial Drone Use

So reports Kathleen Kirby at Weily Rein's media law blog. From the blog:

The Federal Aviation Administration (FAA) has recently stepped up enforcement efforts against Unmanned Aircraft Systems (UAS) operators engaged in unauthorized “commercial” operations. The FAA’s current regulatory scheme permits hobby and recreational use of UAS but requires commercial UAS users to receive FAA authorization before beginning operations. Two recent regional office enforcement actions against UAS hobbyists (prompted by the content on their respective websites) reaffirms the FAA’s commitment to preventing unapproved UAS operations and signals that the agency may be adopting a broad view of what constitutes “commercial” operation.
These two new instances of enforcement include a notification of a potential violation to a drone operator who "advertises his UAS aerial photography services," and a notice of a potential violation to a drone operator who posts drone-shot video to YouTube, where ads are displayed before the videos play. Coverage of the first enforcement action is available here. Coverage of the second enforcement action is available here.

I noted a while back that people who use drone photography for architectural or landscaping purposes, and who advertise their photography services are running a risk of violating the FAA's current ban on the use of drones for commercial purposes. Drones may well be useful, and the FAA has proposed outlines for potential new regulations governing the commercial use of drones. But at this point, those rules are in the early stages of development, and the unauthorized use of drones for commercial purposes may land drone operators in hot water. For this reason, I am not particularly surprised by the first enforcement action.

But the second enforcement action against drone footage on YouTube is notable in its potential breadth. I can see how using a drone to shoot footage that is later posted online and monetized through ads may be construed as being a commercial use of the drone. But in light of existing, widespread use of drones to shoot interesting and often breathtaking footage, this type of enforcement action -- if uniformly applied -- could lead to troubles for a large number of drone enthusiasts, and could result in a drop in drone-shot photography and footage that is shared online.

Wednesday, April 1, 2015

Firearms in Student Housing: California Penal Code 626.9 and the Second Amendment

I visited UCLA last weekend. While I was there, I visited Weyburn Terrace, an apartment complex for UCLA graduate students. UCLA's website describing the housing is here. In a nutshell, Weyburn Terrace consists of apartment-style housing for graduate students only, and it is owned and operated by the school.

When I visited, I noticed a new sign on the main entrance of the building that had not been there during my time at UCLA Law. Here is a picture of the sign:

The picture is a little blurry, and in case you have trouble making it out, it says:

Notice: This property is owned and/or operated by the Regents of the University of California.


Violators will be prosecuted to the fullest extent of the law and subject to incarceration in state prison.
California Penal Code section 626.9(h) states:

Notwithstanding Section 25605, any person who brings or possesses a loaded firearm upon the grounds of a campus of, or buildings owned or operated for student housing, teaching, research, or administration by, a public or private university or college, that are contiguous or are clearly marked university property, unless it is with the written permission of the university or college president, his or her designee, or equivalent university or college authority, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years. Notwithstanding subdivision (k), a university or college shall post a prominent notice at primary entrances on noncontiguous property stating that firearms are prohibited on that property pursuant to this subdivision.
The sign's citation is not entirely accurate, because section 626.9(h) only applies to loaded firearms. But unloaded firearms are prohibited as well under section 626.9(i). This means that guns -- loaded or unloaded -- are prohibited in buildings used for student housing in California universities or colleges.

Is this prohibition constitutional? I explored the question in my first published paper, Second Amendment Challenges to Student Housing Firearms Bans: The Strength of the Home Analogy.