By Zachary Israel
Responding to the burgeoning interest in the use of drones from public, commercial and private entities, U.S. state legislatures are working to develop a regulatory regime for drones. Though the Federal Aviation Administration (FAA) still has until September 30, 2015 to establish comprehensive rules for the use of domestic drones, lawmakers are aware that the federal government has been known to miss deadlines for important rulemakings (even ones mandated under federal law), and are largely suspicious of the FAA’s ability to safeguard privacy. Dozens of states are taking the initiative to deal with drones on their own turf. Thus far, 43 states have proposed drone legislation; nine states have enacted laws relating to drones.
New Jersey, which has been selected to host one of the FAA’s six drone test sites, is one such state, and was set to adopt a regulatory regime for drones well before the FAA’s 2015 deadline. The proposed bill, A4073/S2702, would have required police, firefighters and EMS to obtain a warrant before using a surveillance drone except in certain extraordinary situations (i.e., search and rescue missions, monitoring forest fires, etc.). It would also have required law enforcement to discard any information that is collected by a drone but is not relevant to an ongoing criminal investigation within 14 days. Finally, it would have prohibited the weaponization of drones in New Jersey.
The New Jersey Legislature approved the legislation overwhelmingly (the state Assembly passed the bill by a vote of 76-1; the state Senate passed the bill by a vote of 34-2). However, on January 21, Governor Chris Christie pocket vetoed the drone bill on along with 43 other bills that were delivered to his desk from the Legislature (the majority of these bills were passed in the Assembly and Senate with overwhelming bipartisan support; 11 vetoed bills actually received unanimous support from the Legislature). Governor Christie did not provide any reasoning or rationale for his veto of the drone legislation and was unavailable to comment for this story.
The American Civil Liberties Union of New Jersey issued a statement protesting Christie’s decision, describing A4073 as “a bill that would have given New Jerseyans some of the strongest civil liberties protections in the nation against abusive drone surveillance.” Jersey Senator Nick Sacco, a sponsor of the bill, said he plans to reintroduce the bill in the new legislative session that began on January 14th. “I believe that there must be safeguards put in place to protect New Jersey residents’ rights from this new technology,” Sacco said. “Drone technology exists and is certainly coming to our state sooner or later,” he continued, “and my bill would have created vital protections for our citizens.” Michael Patrick Carroll, a Republican (and Libertarian-leaning) State Assemblyman who was the only member of the New Jersey General Assembly to vote against bill A4073, disagrees. He explained in an interview with the Center for the Study of the Drone that “it’s silly to vote against a particular technology.” Carroll believes that there is no need to develop a new regulatory regime for drones. “If you can fly over someone’s backyard in a Piper Cub [aircraft], what makes a drone any different?” he said. “The 4th Amendment provides as much guidance as we need from the criminal perspective.”
Be that as it may, many state lawmakers still feel that drones will pose new challenges that cannot be accounted for with existing privacy laws. New York State is moving forward with a bill (A6244/S6412) that prohibits any governmental entity from “gather[ing] evidence or other information related to a criminal investigation, criminal case, or conduct in violation of regulation except when authorized under a warrant.” Last year, New York State Rep. Nick Perry proposed a similar bill (A6370/S4537), but it died before being voted upon. More recently, bills relating to the regulation of drones have been introduced in Utah and Minnesota. In the nine states that have enacted drone legislation thus far (Florida, Idaho, Illinois, Montana, North Carolina, Oregon, Tennessee, Texas, Virginia), nearly all of the bills received overwhelming bipartisan support; the Florida Legislature voted unanimously in support of its drone bill, which Governor Rick Scott signed into law on April 25, 2013.
Meanwhile, California, which is home to a number of companies that manufacture drones, is considering a pending bill (AB1327) that would create some of the strictest standards for the use of drones by the government. AB1327 would require law enforcement agencies to obtain warrants except in certain emergencies (i.e. if there is an imminent threat to life, if emergency workers need help dealing with traffic accidents, helping detect wildfires, etc.). It also would require that government agencies notify the public when they intend to use drones and would call for law enforcement agencies to destroy any data collected by unmanned aircraft within six months of its being recorded.
The appearance of “anti-drone bills,” as they are often called, reflects a distrust in law enforcement’s ability to hold itself to the same privacy standards that governed their activities in the pre-drone age, and in the FAA’s ability to include robust privacy provisions in its forthcoming regulations. Running through these bills is a fear that the onset of drone technology will challenge existing privacy safeguards. Though many drone bills have received bi-partisan support, such legislation is not without its critics. Without a statement explaining the veto, it is unclear if Christie’s decision reflects a broader obstacle to the proliferation of drone legislation. Whether Governor Christie maintains substantive objections to the bill or if he is merely hoping to avoid controversy and protect his presidential ambitions in the midst of the George Washington Bridge scandal, the trajectory of bill A4073/S2702 illustrates that even though voting patterns indicate that drone regulation receives overwhelming bipartisan support in state legislatures, the passage of legislation remains a fragile process. In part, this is because drone legislation is a response to largely hypothetical concerns.
Anti-drone legislation has not observed the traditional party-line split; if the popularity of anti drone legislation is an indicator of majority, bi-partisan concerns at a national level, state laws provide at best a piecemeal solution that is dependent on the vagaries of individuals such as Chris Christie. If the need for a comprehensive policy regime to protect privacy in the drone age is real, the story of New Jersey’s failed drone bill could become an important chapter in the domestic integration of drone technology.