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US states pilot the drone menace into the statute books

Parrot_AR.Drone_2By Simon Davies

A new report on the regulation of drones in the US has identified a surge in state legislation to control the technology.

The analysis “The Year of the Drone” was prepared by Allie Bohm of the American Civil Liberties Union (ACLU). It presents an interesting picture of increased activity by state legislatures concerned about increased drone use by government agencies.

Indeed the US is way ahead of Europe on drones legislation, despite there being obvious risks to existing data protection law established in all EU countries.

Indeed the US is way ahead of Europe on drones legislation, despite there being obvious risks to existing data protection law established in all EU countries. While Germany, France, Belgium and the UK have incorporated drones within civil aviation regulations, the move to enact specific legislation has been slow. The International Working Group on Data Protection in Telecommunications, an informal gathering of data protection authorities, is however on the point of publishing a common position on the topic and this may accelerate legislative activity.

The ACLU report identified 42 states that have considered 96 bills related to domestic drones, the vast majority of which focused on privacy.

Drones legislation has been enacted in eight states. Maine had its drones bill vetoed by its governor, and legislation passed through a chamber or committee in a handful of states.

Eight states may seem insignificant in comparison to the 43 that considered legislation, but the ACLU says is remarkable that so many bills were enacted the in the first session, given that legislation often takes many years to marinate and gain legislator and public support before passing. “What’s more remarkable is that these initial laws are, for the most part, very good”.

These initiatives come not a minute too soon. It’s no stretch to imagine that in five years these devices will be purchased by every housing association and local authority to police their properties.

The majority of bills that became law require a probable cause warrant in order for law enforcement to use a drone to gather evidence in a criminal investigation, whether that investigation takes place in a private or public space (with appropriate emergency exceptions). This is notable, the report observes, “because while law enforcement should undoubtedly be acquiring a warrant in private spaces, the public spaces portion goes above and beyond Constitutional requirements and is a good indicator of how deeply the public and legislators value their privacy and how viscerally they view drones as a threat to that privacy.”

The states featuring this probable cause warrant requirement include Florida, Idaho, Illinois, Montana, Oregon, and Tennessee.

Some laws include special permission for the use of drones around crime scene or crash scene documentation, and around law enforcement training flights.

Illinois has incorporated a 30-day data retention limit where that data is not evidence of a crime or part of an ongoing criminal investigation. Even better, Tennessee has a 24-hour data retention limit on data collected on individuals or property that are not the target of the specified investigation. Illinois also requires that, where possible, care be taken to only collect information on the target of an investigation.

Importantly, Montana and Oregon require law enforcement to meet the same standards they would have to in order to fly their own drones if they want to acquire information from third party drone use.

These initiatives come not a minute too soon. It’s no stretch to imagine that in five years these devices will be purchased by every housing association and local authority to police their properties. They will circle above our heads as a fixed and constant part of our environment, piloted by unseen security enthusiasts who will record and track our movements in infinitely greater detail than even the current generation of CCTV installations can achieve. They will be deployed to trouble spots and areas of perceived risk such as outdoor venues and parks. They will circulate throughout auditoriums and workplaces.

While US states have yet to deal comprehensively with private use of drones, Europe would be wise to follow their lead on this issue.