Does California Need a Law Prohibiting Drones Near Wildfires?

Ars Technica reports:

Firefighters working to contain a wildfire in the San Gabriel Mountains of Southern California were temporarily thwarted this weekend when pilots for the Monrovia Fire Department (MFD) spotted a few private drones in their path. For low-flying fire-fighting planes carrying fire retardant and smoke jumpers, an errant drone could mean life or death for the pilot and any crew. As such, the fire department decided to temporarily ground all aircraft on Saturday morning.

ABC News has further coverage on drone interference with efforts to combat wildfires in California.

Additionally, Ars Technica reports on the first arrest in California for flying a drone too close to a wilfire:

Law enforcement officers working for the California Department of Forestry and Fire Protection (Cal Fire) arrested Eric Wamser (PDF), a 57-year-old Placer County man, last Friday [July 19, 2016] for flying his drone too close to a wildfire burning north of Sacramento, California. 

Wamser’s arrest is the first of its kind in the state. 

The incident occurred on the evening of June 28 when the Trailhead Fire broke out. A drone was spotted above the fire, so authorities temporarily grounded firefighting aircraft for about 30 minutes. 

. . .

Wamser was not charged with flying a drone specifically, nor has he been penalized by the Federal Aviation Administration (FAA), but rather he was charged with a more general misdemeanor for “interfering with firefighting efforts.” He was discovered as the drone pilot after he posted some images from the drone on social media. Cal Fire and Placer County law enforcement did not say how they discovered the social media posts, but a Cal Fire spokesperson speaking to Ars suggested Wamser had posted a video and that it had been publicly available. Local news outlet KCRA reports that Wamser had posted a video on Facebook.

One might point to this coverage of drone interference with wildfires as examples of why a law prohibiting drone flight near wildfires is necessary. Utah passed such a law (which also authorizes firefighters to shoot down or otherwise neutralize offending drones). And proposals for this type of law are not new to California. Indeed, I wrote a post about such a law that Governor Jerry Brown vetoed last October. As I noted in that post, Governor Brown's reason to veto that bill, among others, was that it added an unnecessary crime to an already bloated Penal Code.

In light of all the reports of drone interference with firefighting in 2016, was Governor Brown wrong to veto the bill outlawing flying drones near wildfires?

The short answer is no. California Penal Code section 148.2 prohibits the willful interference with the lawful efforts of firefighters in the discharge of their official duties. This is the statute under which Wamser is being prosecuted. Any reasonable drone pilot should know that flying a drone near a wildfire will interfere with firefighters' ability to combat the fire from the air. With all the coverage of drone interference and statements by various agencies regarding obstacles to firefighting, this should be common knowledge. Adding a drone-specific law would be redundant, since section 148.2 is already sufficient to prosecute those whose drones interfere with firefighting efforts.

The best response to this that I can think of is that while a drone-specific law would be redundant, it might draw more attention to the problem of drone interference with firefighting. A drone-specific law would likely attract media coverage -- particularly coverage by outlets directed towards drone users. Drone operators may not be aware of Penal Code section 148.2, but they would likely take notice of a drone-specific criminal law.

Ultimately, I don't think it is worth adding a redundant crime to the Penal Code simply out of hope that it will draw more attention than existing laws. Instead, officials should continue to emphasize that even though there are no laws specifically banning drones near wildfires, flying a drone near a wildfire will likely interfere with firefighting efforts and therefore violate Penal Code section 148.2.

Moreover, governments can act to prevent drone-related offenses before they happen, rendering prosecution unnecessary. Of particular note are efforts toward an alert system warning drone pilots of no-fly zones. Between warning systems and emphasizing existing criminal laws, it hopefully will not take too many more instances of firefighting interference and arrests before drone pilots get the message.

Utah Bill Restricting Law Enforcement Drone Use Moves to State Senate

The Daily Herald reports:

A push to establish limits in Utah on law enforcement's use of unmanned aerial systems is closer to becoming reality after a Senate panel unanimously approved some restrictions on drones Tuesday. 

The Senate Government Operations and Political Subdivisions Committee voted 5-0 to advance the bill, which requires law enforcement to get a warrant to use drones and limits what data can be collected. 

The measure now advances to the full Senate for consideration.

The full text of the bill is available here.

The bill's data retention provisions are a good idea, but they are a little vague -- requiring law enforcement agencies to destroy collected data as soon as is "reasonably possible." A bill that requires elimination of the information after a certain amount of time unless there are exceptional circumstances may be more likely to ensure that law enforcement agencies get rid of that information faster.

More notably, the bill requires law enforcement agencies to obtain a warrant in order to collect information with drones unless that information is collected "in accordance with judicially recognized exceptions to warrant requirements."

If Utah's search and seizure law is similar to federal Fourth Amendment law, then this bill will have virtually no impact on law enforcement's ability to collect information using drones. Under the Fourth Amendment, law enforcement officers can engage in surveillance of people as long as the surveillance practices do not violate reasonable expectations of privacy. Courts have held that this means police officers can fly over people's fenced-in yards in planes or helicopters without a warrant. Law enforcement could presumably do the same thing with a drone and still fall within "judicially recognized exceptions" to the warrant requirement.

This law is admirable for providing guidelines for data retention and police reporting on their use of drones. But the bill does little to limit law enforcement's ability to collect information using drones.

Is There a First Amendment Right to Collect License Plate Data?

Ars Technica reports on a lawsuit that has been filed based on a recent Utah law that restricts the private collection of license plate reader (LPR) information. LPRs take pictures of license plates, scan them, and check them against a database of plates for stolen cars. This information is typically stored for long periods of time. The text of the law restricting the collection and use of this information is available here.

Utah's restriction on the LPR information collection has not sat well with several private firms that collect this information and relay it to law enforcement agencies:

Two major private LPR firms—Digital Recognition Network and Vigilant Solutions—are suing Utah’s governor and attorney general, arguing that they have a First Amendment right to collect data on license plates, which are displayed in public on open roads.
. . .

The alleged First Amendment violation, the plaintiffs argue, occurs because taking a photograph is constitutionally protected. "The State does not have a substantial interest in preventing persons from viewing or photographing license plates—or from disseminating the information collected when doing so—because license plates contain no private information whatsoever," argue the plaintiffs. "Moreover, the photographic recording of government-mandated public license plates does not infringe any 'privacy' interest that concededly is not infringed when the photographer views the plate. Thus, the State cannot carry its heavy burden to demonstrate that it has a substantial interest that is served by the Act."

Proponents of the law argue that the behavior being restricted is not speech. They also point out that the government has a strong interest in protecting the privacy of its citizens and that LPR technology is intrusive because it can collect plate information at night or in other adverse conditions, and stores this information for long periods of time.

Opponents of the law note that the law specifically restricts the use of LPR technology, and that this is a content-based restriction on speech. Statutes that restrict speech along the lines of the speech's content (say, for example, a statute that restricts protests unless those protests are related to labor disputes) are typically found to violate the First Amendment. Opponents also note that the restriction only applies to certain speakers, which may bolster arguments that the law discriminates against certain types of speech or viewpoints.

I am not sure how this case will turn out, but I think that some of the arguments opposing the law are a bit muddled. For example, there is probably a decent argument that the restrictions on the use of LPR data violate the First Amendment, but it is not clear whether this part of the statute affects private actors like the plaintiffs in this case because those actors are prohibited from collecting the data in the first place. And even if private plaintiffs have the LPR data, all entities that collect this information seem to be equally affected by restrictions on the use of the information.

One particularly interesting dimension of the case is that it "seemingly pits the privacy rights of individuals against the First Amendment rights of corporations to engage in constitutionally protected speech." It would be interesting to see how these two rights would be weighed against each other. The debate may be a bit muddled because people's license plate information is typically displayed to the public. But people may not expect their information to be systematically collected and stored in the way that LPR technology allows.

Ars Technica concludes by noting that the ACLU of Utah is working with the bill's author to revise the law, so this lawsuit may fizzle out before any interesting legal conclusions are reached. But it will be interesting to see if this case continues, and how the courts will balance the state's interest in protecting privacy with the plaintiffs' interest in collecting and using LPR data. If the case ends up coming out in the plaintiffs' favor, it could have broad, unsettling implications for legislatures seeking to curtail surveillance practices.