Bill Adding A Warrant Requirement For Aerial Surveillance Introduced In The House

Our nation's federal law enforcement agencies may soon be gazing back wistfully at the Golden Age of Warrantless Surveillance and wondering where it all went so very wrong. (Hint: the "warrantless" part had a lot to do with it.)

One place where the lack of warrants hasn't raised much concern is aerial surveillance. While the FBI may send its "secret" planes out to fly spiders-on-ecstasy patterns over US cities, the courts have generally found that this sort of surveillance doesn't violate anyone's expectation of privacy. In fact, cops pretty much have to land a helicopter in someone's backyard while "ground troops" point guns at the homeowner before the Fourth Amendment comes into play.

This "no expectation of privacy if by air" assumption may be on its way out. It won't be the Supreme Court weighing in on the subject though. It will be Congress doing the job the courts often ask it to do: legislating additional, specific protections.

David McCabe at The Hill reports that a bill targeting airborne surveillance has been introduced, looking to bring a warrant requirement to an area where warrants are generally thought to be extraneous.

The measure, dubbed the Protecting Individuals From Mass Aerial Surveillance Act, is sponsored by Rep. Suzan DelBene (D-Wash.).

"Just because technological advances have made it easier for the federal government to collect information doesn't mean that our privacy rights can or should be violated on the ground or in the air," DelBene said in a statement. "Congress has an obligation to clear the legal fog by passing my bill to require the federal government to obtain a warrant if it wants to conduct aerial surveillance."

The bill is co-sponsored by Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Texas), Earl Blumenauer (D-Ore.) and Don Beyer (D-Va.). A related bill was introduced in the Senate earlier this year.

Similar to the Senate legislation introduced earlier this year, the bill begins by outlawing aerial surveillance.

A Federal entity shall not use a MAVD [mobile area-view device] 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.

That's a ban. It's the exceptions (which include exigent circumstances, patrolling national borders and research) that introduce the warrant requirement.

(5) Warrant

A law enforcement party using a MAVD, pursuant to, and in accordance with, a Rule 41 warrant, to surveil specific property, persons or their effects.

This bill will probably see some significant pushback, considering it's an area that has long been excepted from warrant requirements. If it can be seen from the air, it's technically not "private" -- not even if someone's made an aggressive privacy statement by constructing a 12-foot-high wall around their property.

This additional stipulation may see even greater pushback than the warrant requirement.

(a) No Federal entity actor may make any intentional effort to identify an individual from, or associate an individual with, the information collected by operations authorized by paragraphs (1) through (3) of subsection (a), nor shall the collected information be disclosed to any entity except another Federal entity or State, tribal, or local government agency or department, or political subdivision thereof, that agrees to be bound by the restrictions in this Act.

Considering multiple federal agencies are building biometric databases as quickly as they can, cutting off this supply of new faces won't be well-received. The FBI, et al. would no longer be able to troll for database filler by aimlessly flying above major population centers with its cameras on. Considering this sort of footage is likely automatically uploaded to federal biometric databases, the passage of this law would require the partial dismantling of existing software and processes.

Then again, the exception provided may prove to be capable of swallowing the rule.

(b) The restrictions described in subsection (a) shall not apply if there is probable cause that the information collected is evidence of specific criminal activity.

It doesn't take much finesse to turn untargeted aerial photography into something "relevant" to an ongoing criminal investigation. All someone has to do is fly a plane around a last known address for a few hours before dumping the entire recording into the "unminimized" chute feeding to the biometric database.

While the bill does contain language prohibiting the outsourcing of aerial surveillance to private contractors, it doesn't expressly forbid federal agencies from farming out the job to local law enforcement, which is expressly excepted from this proposed legislation.

Nothing in this Act shall be construed to preempt any State law regarding the use of MAVDs exclusively within the borders of that State.

While there are a few loopholes in the bill, it would be a nearly-complete reversal of the "expectation of privacy" status quo -- going from "nearly nonexistent" to "get a warrant" in a couple dozen tightly-written paragraphs.

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