Commentary

Lawmakers In “Live Free or Die” State Tackle Drone Privacy Issues

Last month lawmakers in the New Hampshire House of Representatives passed a bill regulating government and citizen use of drones. The bill includes strong privacy protections that address some of the most common concerns associated with police using flying robots. The legislation is the latest example of local lawmakers improving upon decades-old Supreme Court precedent amid rapidly changing technology.

Lawmakers in the Live Free or Die state are the latest to demonstrate a willingness to go beyond the floor set by the Supreme Court when it comes to aerial surveillance.

In a world where drones with cameras are well within many law enforcement budgets it is reasonable to ask when police can fly a drone over your backyard. It’s understandable if you think that you have a reasonable expectation of privacy in your backyard, but the fact is that the Supreme Court ruled in two cases from the 1980s (Florida v. Riley and California v. Ciraolo) that you don’t.

In both cases justices on the Court held that observations from the air are analogous to observations from public roads. A policeman looking into your living room from a public sidewalk does not need a warrant to do so. Likewise, a police officer looking at your property from an airplane in airspace where the public could fly does not need a warrant and is not violating your reasonable expectation of privacy.

In his majority opinion in Ciraolo Justice Burger wrote: “Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we readily conclude that respondent’s expectation that his garden was protected from such observation is unreasonable, and is not an expectation that society is prepared to honor.” Similarly, Justice White stated in his opinion of the court in Riley that, “Any member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse. The police officer did no more.”

You’d be forgiven for finding this disturbing. While it is the case that air travelers can sometimes — for a fleeting moment — look into backyards during take off and landing, they are hardly inspecting the properties with the kind of scrutiny remotely comparable to the searches carried out by the officers in the Riley and Ciraolo cases.

The bill recently passed by lawmakers in New Hampshire improves on Supreme Court precedent. The bill states explicitly that police cannot use drones for surveillance:

No government shall use a drone, or obtain, receive, use, or retain information acquired by or through a drone, to engage in surveillance, to acquire evidence, or to enforce laws.

In addition, the bill extends citizens’ expectation of privacy while police are using drones (emphasis mine):

an individual is presumed to have a reasonable expectation of privacy on privately-owned real property if he or she […] is not observable by individuals located at ground level in a public place where they have a legal right to be, regardless of whether he or she is observable from the air.

According to the legislation police would only be able to use drones under a narrow set of circumstances. For example, the bill allows for police to use drones if they have a warrant or the consent of the subject of surveillance. Drones could also be used to document crime scenes and to assist law enforcement during emergencies or to counter a terrorist attack.

The bill also bans police from arming drones with lethal or non-lethal weapons and requires images of “identifiable individuals” captured by drones to be blurred or deleted “as soon as practicable.” In case there was any ambiguity related to the purpose of the bill, it states: “This chapter shall be construed to provide the greatest possible protection of the privacy of the people of this state.”

Lawmakers in the Live Free or Die state are the latest to demonstrate a willingness to go beyond the floor set by the Supreme Court when it comes to aerial surveillance. Until the country’s highest court is given the opportunity to reexamine aerial surveillance in the age of the drone state lawmakers should take it upon themselves to tackle the difficult questions concerning privacy and technology.

Matthew Feeney is a policy analyst at the Cato Institute.