Senator Paul's Proposal to Curb Domestic Drone Surveillance
FAA, eat your heart out. From The Hill, we learn that Senator Rand Paul (R-KY) has proposed legislation to curb the use of drones for domestic surveillance. The heart of his "Preserving Freedom from Unwarranted Surveillance Act of 2012," is as follows:
SEC. 3.
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FAA, eat your heart out. From The Hill, we learn that Senator Rand Paul (R-KY) has proposed legislation to curb the use of drones for domestic surveillance. The heart of his "Preserving Freedom from Unwarranted Surveillance Act of 2012," is as follows:
SEC. 3. PROHIBITED USE OF DRONES."Section 4" naturally identifies some exceptions to the proposal's warrant requirement. There would be no need for a warrant during border patrols designed to prevent or to deter illegal immigration or drug activities. Law enforcement personnel also would not have to get a warrant, if they "possess[] reasonable suspicion that under particular circumstances, swift action to prevent imminent danger to life is necessary." Lastly, warrantless drone use would be permissible, in order "to counter a high risk of a terrorist attack by a specific individual or organization," based upon credible intelligence as determined by the Secretary of Homeland Security. An exclusionary provision would bar use of unlawfully gathered drone evidence from criminal proceedings. I'll leave close analysis to others, but on first glance, it seems to take plain view surveillance off the table ("use") when a drone is involved - essentially ensuring that airplanes and helicopters will remain workhorses for aerial surveillance. (If you thirst desperately for a proposal to account for regulatory gaps akin to these, which are common in surveillance law, see here.) The bill's broad remedies provision also caught my eye. It says that "any aggrieved party" can bring a civil action for "all appropriate relief" to "prevent" or to "remedy" violations of the bill's warrant provision. I guess I could sue to enjoin an anticipated but unlawful drone sweep over my car?Except as provided in section 4, a person or entity acting under the authority, or funded in whole or in part by, the Government of the United States shall not use a drone to gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute or regulation except to the extent authorized in a warrant that satisfies the requirements of the Fourth Amendment to the Constitution of the United States.
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.
