Update on California Legislative Action on Drone Use
We wrote last year that 2015 would be a critical year in the development of drone law in California. We continue to monitor the three bills that are wending their way through the legislative process: SB 142, SB 271, and AB 56. AB 56 appears to be the most controversial at this point—you may recall that the bill’s original intent, still preserved, is to allow for use of a drone by law enforcement—so long as such use complies with the Fourth Amendment (i.e. a warrant is obtained as necessary and applicable). In the last week, largely in response to privacy concerns, and in particular those expressed by the ACLU, the bill has been amended in a number of ways that might increase its chances of passage, although perhaps at the risk of creating legal ambiguities while resolving political stumbling blocks.
First, at the most general level, the statute now allows use of a drone by law enforcement only when such use complies with the “protection of the inalienable right of privacy guaranteed by the California Constitution.” More specifically, any law enforcement agency that uses a drone must keep records of such use, including whether or not it sought a warrant and if the warrant was granted. In addition, the law enforcement agency must develop a policy that demonstrates how the “collection, use, maintenance, sharing, and dissemination” of information and data gathered through the use of a drone is “consistent with respect for an individual’s privacy and civil liberties.” The policy must also specify the circumstances under which a done may and may not be used, including time requirements, training requirements for authorized employees, and other restrictions. Finally, the policy must prohibit the use of a done solely for the purpose of monitoring activities protected by the First Amendment or “the lawful exercise of other rights secured by the United States Constitution, the California Constitution, and federal and state law. The policy shall also prohibit the use of a drone system to engage in discrimination on the basis of race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity.”
These provisions might appear to be aspirational and difficult to enforce. But the statute as amended now creates a civil right of action against any person who knowingly violates the statute—including both the policy requirements as well as the underlying prohibition against use that violates the Fourth Amendment. The statute provides for punitive damages and attorneys’ fees in addition to any actual damages. It is not difficult to imagine litigation alleging that use of a drone violated an individual’s privacy rights, not to mention Fourth Amendment rights.
If the bill passes as currently drafted, law enforcement agencies will need to be extraordinarily careful that use of a drone does not implicate the privacy rights now protected by the statute. September 4 is the last day to amend a bill, and all bills must be passed by September 11. So we will know soon whether and how California drone law has changed.