Friday, February 21, 2014
BOB GARFIELD: At a Senate committee hearing on the use of unmanned aircraft last month, Senator Dianne Feinstein of California described her own brush with a drone.
SENATOR DIANNE FEINSTEIN: I went to the window to peek out and there was a drone [LAUGHS] right here at the window. Obviously, the pilot of the drone had some surprise because the drone had wheeled around and crashed. So I felt a little good [LAUGHS] about that.
BOB GARFIELD: If Senator Feinstein is concerned about privacy rights in the face of drone technology, she is certainly not alone. A rash of state laws, considered or passed in 2013, seek to rein in drone surveillance. They offer a patchwork of restrictions that seem to reflect the particular culture or business interests of individual states, never mind that the FAA doesn't allow commercial use of drones, period.
Margot Kaminski is executive director of the Information Society Project and a lecturer at Yale Law School. She has surveyed the legal landscape and noticed a trend.
MARGOT KAMINSKI: Most of the states, with the support, I would add, of the ACLU, have headed in the direction of regulating law enforcement use of drones, rather than private civilian use of drones.
BOB GARFIELD: Very Fourth Amendment friendly.
MARGOT KAMINSKI: Yes. I would say they’re Fourth Amendment- plus, given the current state of Fourth Amendment law. If the more recent Supreme Court case - that I think it was two years ago, US vs. Jones - hadn't come down, it would be fairly clear that there is no Fourth Amendment protection against drone surveillance.
BOB GARFIELD: Now, some of the laws seem to protect certain special interests and to project certain regional politics and anxieties. I’m thinking Texas.
MARGOT KAMINSKI: Yes. The Texas drone bill is really interesting. The basis of the law is that if you are a private individual using drones to surveill other private individuals or other private property, that surveillance is illegal, unless you fall into one of the 19 exceptions. [LAUGHS] And the 19 exceptions include real estate agents, oil pipeline monitors and a number of other sort of comically small carveouts that probably are indicative of pressures on the Texas legislature.
BOB GARFIELD: So that kind of reminds me of Idaho, which seems to show an interest in protecting the farming and ranching sector.
MARGOT KAMINSKI: Yes, the Idaho drone law says that, in general, no person may use a drone to intentionally conduct surveillance of a person or a specifically targeted private property. It additionally points out that a farm dairy ranch or other agricultural industry falls into those kinds of private properties.
BOB GARFIELD: For fear of animal rights activists, sending a drone up to gather intelligence, evidence and what you?
MARGOT KAMINSKI: Yes. What's interesting is that those animal rights activists would presumably already be covered by the law, but Idaho is redundant and points out that farms, dairies, ranches, in particular, are protected by their anti-drone surveillance law.
BOB GARFIELD: Now, if Idaho and Texas fear do-gooders spying on industry, it’s not for no reason, right? Tell me about the river of blood.
MARGOT KAMINSKI: Before the Texas drone bill passed, there was this drone videographer who flew their drone over a meatpacking plant in Texas and photographed a river of blood coming out of the back of the meatpacking plant, flowing into a public Texan waterway. And that photograph eventually resulted in environmental enforcement against the meatpacking plants. But with the current Texas bill in place, it is likely that that do-gooder, the drone videographer, would be prosecutable under the bill.
BOB GARFIELD: The Illinois law protects one special category from surveillance by drones, and that category weirdly is hunters and fishermen?
MARGOT KAMINSKI: The Illinois law criminalizes a person who uses a drone in a way that interferes with hunting or fishing. There's sort of a question of what “interferes with” means, right? So if a journalist or actually a PETA activist uses a drone to surveill a hunter or fisherman, it’s quite possible that they could be prosecuted under the statute.
BOB GARFIELD: I’m gonna talk about journalism. There are a number of obvious and perhaps less than obvious possibilities for these drones covering the demonstrations and large-scale police departments, and so forth. Based on the laws that the states have passed so far, how have news organizations been affected?
MARGOT KAMINSKI: Those laws require those who use drones to film to get the consent of the owner of the property that they're filming or to get consent of the individual who's being filmed. So if you're a journalist and is they’re reluctant to give consent, this is a fairly major hurdle. The laws that thus far have attempted to regulate private use of drones, such as the Texas bill and the Idaho bill, really miss the mark by overreaching into areas that should be protected by the First Amendment.
BOB GARFIELD: There is even a sort of stand your ground analog for drones in one jurisdiction, a little town in Colorado called Deer Trail.
MARGOT KAMINSKI: So Deer Trail, Colorado is currently considering passing a drone hunting license ordinance, where for $25 you can get a license to, from your personal property, take three shots at any unmanned aerial vehicle that you can reach.
BOB GARFIELD: [LAUGHING] Oh my God.
MARGOT KAMINSKI: Yeah. The drone hunting license is subject to a full town vote on, appropriately, April 1st, 2014, so April Fools' Day.
BOB GARFIELD: What happens if the people in Deer Trail, while shooting at drones, bring down a Black Helicopter?
MARGOT KAMINSKI: I think they actually get a bounty. There's a reward in place, if you shoot down a federal drone that is identifiable by any kind of markings on the fuselage.
BOB GARFIELD: Oh my goodness gracious. Margot, [LAUGHS] thank you very much.
MARGOT KAMINSKI: Thank you, again, for having me.
BOB GARFIELD: Margot Kaminski is a lecturer at Yale Law School and executive director of the Information Society Project.