Amid controversy over the bill and its potential consequences, Gov. Jerry Brown vetoed AB 1327 this Sunday. The bill would have required law enforcement agencies to obtain a warrant before using a drone to gather criminal intelligence. The Governor indicated in his veto message that while there are circumstances where a warrant would be appropriate, the bill’s exceptions were too narrow and might impose requirements beyond the Fourth Amendment or the California Constitution.
Those exceptions included emergency conditions, such as an oil spill, a brush fire or an armed gunman. Law enforcement groups argued that the bill would have shouldered them with a greater burden than currently exists under the Fourth Amendment, which has been interpreted to allow officers to lawfully observe what can be seen from a public airspace.
Proponents of the bill, including its author, Assemblyman Jeff Gorell, argue that the expanded use of drones by law enforcement pushes against the boundaries of the public’s reasonable expectation of privacy, and so must be limited. Advocates argue the unfettered use of drones will create a surveillance state, and that the next step they will take is to propose a complete moratorium on drone use in California. A similar blanket ban currently exists in Virginia, with an exception only for use in emergency situations.
AB 1327 appeared to be a hasty attempt to legislate a new and relatively-untested application of drone technology. The bill risked placing burdens on agencies that might have deterred them from adopting drones, even when they might be used to save funds, or even potentially lives. Prematurely restricting the use of drones would have harmed public safety while providing uncertain benefits in terms of privacy. Additionally, the search warrant requirement, which the bill sought to impose, is an inappropriate stricture on drone use. Search warrants are required only when the police intrude into a place protected by an individual’s reasonable expectation of privacy under the Fourth Amendment, and are issued solely to obtain evidence of a felony offense. Law enforcement drone use will not normally intrude into Fourth Amendment protected places, and drones will seldom be used to collect or obtain evidence of a felony offense.
Before legislating, policymakers should engage in a robust discussion of how the technology works, anticipated uses for law enforcement and how best to balance those interests against privacy concerns. More information is required before decisions are made at the federal, state and local level, and a rush to legislate may leave us with laws that are ill-equipped to deal with the real and dynamic challenges that unmanned aerial vehicles present to our society.
