Microscope Monday: Massachusetts’ new drone privacy bill

A microscope, steampunk style.

A microscope, steampunk style.

Since our earlier analysis of the repellent new bill expanding electronic wiretapping was well-received, we’re starting an official series analyzing proposed Massachusetts legislation, called “Microscope Monday”.

In honor of the efforts to organize a new drone privacy group here in Massachusetts, this week’s bill is S. 1664 (Hedlund) / H. 1357 (Garry), “An act to regulate the use of unmanned aerial vehicles”.

State Senator Robert Hedlund is introducing this legislation in the Massachusetts Senate. Hedlund is a Republican and is the Assistant Minority Leader. His district covers Cohasset, Duxbury, Hingham, Hull, Marshfield, Norwell, Scituate and Weymouth. State Representative Colleen Garry is introducing the legislation in the Massachusetts House of Representatives. She is a Democrat, and her district covers Dracut and Tyngsborough.

This is not a long bill, but it’s a good one, and we at Digital Fourth commend the sponsors for introducing it. It’s currently in the Committee on the Judiciary (House) and the Committee on Transportation (Senate).

Its main provisions are as follows:

– Prohibits armed drones.
– Requires signoff by the Secretary of Public Safety on acquisition of drones by any municipality or unit of state or county government.

Currently, the only known application to the FAA for use of drones in Massachusetts has been by the MetroLEC SWAT team (covering small communities south of Boston). You can let them know directly how you feel about that application on Twitter here.

– Does not limit usage of drones by private citizens or for non-law-enforcement purposes, but prohibits the use of data obtained in that way in later criminal investigations or for intelligence purposes.
– Permits usage of drones in order to execute warrants (i.e. to find people against whom there is an outstanding arrest warrant). Limits their data collection to the warrant subject only.

I am not sure whether it is technologically possible for a drone equipped with a camera to collect data only on the warrant subject; but the bill goes on to emphasize that law enforcement may only retain data on the warrant subject, which, if true, would make this language unnecessary.

– Permits usage of drones in emergency cases:

when there is reasonable cause to believe that a threat to the life or safety of a person is imminent, subject to the following limitations: i. the operator shall document the factual basis for the emergency; and ii. not later than 48 hours after the unmanned aerial vehicle is initially deployed, a supervisory official shall file an affidavit describing the grounds for the emergency access.

I am usually highly suspicious of “emergency requirements”, because they are elastic. Law enforcement can usually argue that there is some imminent threat to somebody’s safety in order to justify their use of whizzy new technology, and courts are liable to be very deferential to their on-the-spot judgement.

– Prohibits the use of “Facial recognition and other biometric matching technology […] except to identify the subject of a warrant.”

This is an interesting approach. The overall problem with restricting the use of drones is that the Supreme Court ruled in the 1980s that the Fourth Amendment does permit aerial photography that could be used for law enforcement purposes, on the analogy that someone looking out of an airplane window does not thereby violate anyone’s privacy. Today’s high-resolution digital cameras are capable of resolving images at a much more detailed level than is possible using the naked eye from an airplane, but it’s hard for the law to grapple with such a distinction. This clause tries to ground a distinction on whether facial recognition or biometric matching technology is used – but then allows that software to be installed for the specific purpose of identifying the subject of a warrant.

To tell the truth, if such software can legally be installed on a drone, then it’s inevitable that in the course of identifying the subject of a warrant, the technology will scan and rule out the faces of many people. That would, in our opinion, be a search of those innocent people with Fourth Amendment implications. It might be more enforceable to put in place a prohibition against, for law enforcement purposes, using a drone capable of identifying individual faces. Subjects of a warrant would then have to be identified by non-drone means, which is what happens at the moment.

– Prohibits the use of drones:

to track, collect or maintain information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership or other entity unless such information relates directly to investigation of criminal activity, and there are reasonable grounds to suspect the subject of the information is involved in criminal conduct.

This is praiseworthy language. The terrible track record of the Boston PD in policing dissent points up how necessary such language is. The only problem with it is not really a problem that the drafters can effectively deal with, which is the problem of overcriminalization.

With sufficient bias or ill-will on the part of investigators, pretty everyday “activities” can be redefined as “criminal” and “investigated”. The Boston PD clearly has an issue with peaceful groups like United for Justice with Peace, Veterans for Peace, and Occupy Boston, and that animosity is likely to continue to lead them to enmesh innocent people in the criminal justice system. However, I do believe that this language would result in more care being taken in deciding whether to use drones at protests.

There follows a lengthy section dealing with data retention and notification of drone surveillance to the subject of the warrant; essentially, law enforcement can apply for a delay of notification of up to 90 days, but thereafter at a minimum the subject must be notified. The court administrator in the office of court management within the trial court must report out annually to the legislature any warrants involving the use of drones, and the reports will be public records.

Digital Fourth believes this bill is worthy of support. It could be strengthened in some areas, and it’s not a full two-year moratorium on drone use as recently passed in Charlottesville, VA; but it would provide meaningful limits on drone use in Massachusetts, to the extent that the state legislature has power to limit it.

The current sponsors of the bill are: Colleen M. Garry, Frank I. Smizik, Kay Khan, Peter V. Kocot, Paul McMurtry, Ruth B. Balser, Timothy J. Toomey, Tom Sannicandro, Benjamin Swan, Brian R. Mannal, Christine E. Canavan, John W. Scibak, Ryan C. Fattman, Thomas J. Calter, Viriato M. deMacedo, Denise Provost, Jason M. Lewis, and Robert Hedlund.

If you’d like your state legislator to cosponsor this legislation, or if you’d like to congratulate these legislators for signing onto this bill, please let them know!

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