Senators Ron Wyden (D-Oregon) and Dean Heller (R-Nevada) have introduced a bill that would require a warrant prior to the use by any federal entity—including federal law enforcement—of a “mobile aerial-view device.” Such “mobile aerial-view devices” would include unmanned aircraft systems (“UAS”), commonly known as drones.
Senate Bill 1595 (S.1595), titled the “Protecting Individuals From Mass Aerial Surveillance Act of 2015,” was introduced by Senators Wyden and Heller on June 17, 2015. Senator Wyden’s press release on S.1595 can be found here. The text of S. 1595 can be found here.
Senator Wyden’s press release announcing the bill states that, if passed, the legislation “would create critical safeguards for Americans’ privacy, while also providing certainty about the legal framework for aerial surveillance.” The bill was supported by several players in the UAS industry, including SOAR Oregon (which represents the Oregon UAS industry) as well as privacy advocates such as The Center for Democracy & Technology.
As currently drafted, the bill would prohibit the use of UAS by federal entities unless one of the exceptions described in the bill applied: “A Federal entity shall not use a [UAS] to surveil property, persons or their effects, or gather evidence or other information pertaining to known or suspected criminal conduct, or conduct that is in violation of a statute or regulation.” (See Sec. 3 of S.1595.) Most significantly, the prohibition on federal entities using UAS would not apply to “[a] law enforcement party using a [UAS], pursuant to, and in accordance with, a Rule 41 warrant, to surveil specific property, persons or their effects.” (See Sec. 4(a)(5) of S.1595.) Rule 41 of the Federal Rules of Criminal Procedure governs the issuance of search warrants for federal law enforcement agencies.
In addition, no evidence obtained or collected in violation of the bill may be used in any trial, whether federal or state. (See Sec. 6 of S.1595) The bill’s warrant provisions specifically do not apply to state, tribal, or local government agencies or departments, and the bill also expressly does not preempt any state law. (See Secs. 2(3) and 8 of S.1595.)
While the bill attempts to address the increased use of UAS by federal law enforcement, it focuses on the technology used to surveil individuals rather than the privacy interests such individuals may have in the location where they are being surveilled. Such individual privacy interests are typically determining factors in the issuance of warrants by judges and magistrates. As a result, the bill may be challenging to implement, because it is unclear how federal law enforcement would characterize or distinguish the privacy interests of individuals surveilled by UAS as compared with other methods, or how judges would distinguish between such methods (if at all).