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

from the circling-overland dept

Mon, Nov 9th 2015 3:23pm — Tim Cushing

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.

Air Surveillance Bill (PDF)Air Surveillance Bill (Text)

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Filed Under: 4th amendment, aerial surveillance, law enforcement, privacy, surveillance, warrant

22 Comments

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Anonymous Coward, 9 Nov 2015 @ 3:56pm

What about satellite surveillance? Even private sector stuff is pretty advanced these days.
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Chris Brand, 9 Nov 2015 @ 4:03pm

Re:
"‘‘MAVD’’ mean any device that through flight or aerial lift obtains a dynamic, aerial view of property, persons or their effects, including an unmanned air-craft"

Which sounds to me like satellites are excluded.
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Chris Brand, 9 Nov 2015 @ 4:07pm

"probable cause" is a lot tougher than "relevant"
"It doesn't take much finesse to turn untargeted aerial photography into something "relevant" to an ongoing criminal investigation". Sure, but the paragraph you quoted - "The restrictions described [...] shall not apply if there is probable cause that the information collected is evidence of specific criminal activity." doesn't say anything about "relevant" - it says "probably cause" and "that the information collected is evidence". I'd say that's actually pretty well worded to prevent exactly what you suggested.

The real question is whether that tough language survives, assuming the bill itself does...
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John David Galt (profile), 9 Nov 2015 @ 5:32pm

If you're going to run a story about a new bill, please post the bill number so that we can write our Congresscritters.

This one is H.R. 3962.
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Whatever (profile), 9 Nov 2015 @ 6:14pm

Re: "probable cause" is a lot tougher than "relevant"
More than that, the real question would be one of constitutionality. Is there an actual "right to privacy" when it comes to things that can be seen from a public location?

For that matter, where is the public location? The airspace over your land extended up to a certain point, and after that it's common public airspace. You cannot (as an example) control the flow of aircraft over your home unless they get very close. From what I can see, that is something like 500 feet or so (maybe 1000 feet in the UK). We don't even get into the discussion of flying over someone else's land or even a public street... what you can see from there, is it public or private?

Moreover, technology means that taking a video from 2000 feet up or 2000 feet to the side would be high enough quality to be able to read your wrist watch (or just about). Provided they are not looking inside any buildings, is there any real expectation from privacy from above?

For that matter, if police stand on a hill that looks down on a property, would this bill essentially make it illegal to take action on anything they see? Are they not free to see what they can see while in public space, and if so, why would that not include the public airspace?
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Pixelation, 9 Nov 2015 @ 7:37pm

Not likely
This thing will die within days. Our "Representatives" aren't representing us and the majority of them could give a shit about the legality of spying.
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Rekrul, 9 Nov 2015 @ 8:56pm

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.

"Uh-huh. And let me know when Elvis gets here."
- Beldar
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John David Galt (profile), 9 Nov 2015 @ 8:59pm

Re: Re: "probable cause" is a lot tougher than "relevant"
As far as I'm concerned the standard should be what they could have seen in 1800. In other words, any capabilities from tech newer than the Bill of Rights should be denied to police by default unless they get a warrant. (And banned to private snoops as well.)
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Mark Wing, 9 Nov 2015 @ 10:47pm

In space, no one can hear you declare your expectation of privacy.
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Anonymous Coward, 9 Nov 2015 @ 11:16pm

Tonight the stars are shining bright
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Anonymous Coward, 10 Nov 2015 @ 4:09am

I'm sure Ms. Feinstein is working round the clock to make sure the Senate bill gets crushed.
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Anonymous Coward, 10 Nov 2015 @ 5:08am

Re: Re:
I do not see it, please explain.

Space craft are not used for Space Flight?
I guess NASA needs your help in determining a new name for the Goddard Space Flight Center.
https://www.nasa.gov/centers/goddard/home/index.html
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Anonymous Coward, 10 Nov 2015 @ 5:11am

Re: Re: "probable cause" is a lot tougher than "relevant"
Would it cover a drone hovering inches from your bedroom window?
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Anonymous Coward, 10 Nov 2015 @ 5:13am

Re: Not likely
Until it is them in the sights, then - oh boy let the whining begin.
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Anonymous Coward, 10 Nov 2015 @ 5:14am

Re:
Game over man, game over!
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Anonymous Coward, 10 Nov 2015 @ 5:15am

Re:
I'm sure she is the only "representative" doing that sort of thing.
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alp (profile), 10 Nov 2015 @ 6:09am

Warrants for Arial Surv.
We can whine all we want...

If the government needs a warrant, they'll simply bypass the entire issue & contract with an independent company to do the deed.
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Personanongrata, 10 Nov 2015 @ 6:56am

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

It is a nice start for congress.

Perhaps in the not so distant future congress will also change the law in regard to civil asset forfeiture by burdening the state with the hurdle of due process before it may seize and keep a citizens property.
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Personanongrata, 10 Nov 2015 @ 6:58am

Re: Warrants for Arial Surv.
If the government needs a warrant, they'll simply bypass the entire issue & contract with an independent company to do the deed.

The government already does this.
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Anonymous Coward, 10 Nov 2015 @ 7:22am

Re: Re: "probable cause" is a lot tougher than "relevant"
More than that, the real question would be one of constitutionality. Is there an actual "right to privacy" when it comes to things that can be seen from a public location?
What's the constitutional problem you're mentioning? Congress can create a right to privacy even if none exists now (although the 5th amendment has been interpreted that way to some degree). Perhaps a strict ban on aerial surveillance could violate citizens' rights to photography, but there's no such problem when limiting the abilities of government agencies.
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Ninja (profile), 10 Nov 2015 @ 8:25am

Re: Re: Re: "probable cause" is a lot tougher than "relevant"
The problem here isn't the ability to take pics from above, it's the Government using it as a form of surveillance. If it's one picture taken from a drone and there isn't anything invading in it (say the owner naked on the roof taking a sun bath) then it's free game to distribute and use. Now if it is some sort of surveillance either private or (and especially) Governmental then there is a problem. Our pet troll (who seemingly took his medicine) got it partially right. It should be a non issue except if it takes the form of surveillance. Otherwise we'd be having immense trouble with current super-high-res satellite photos.
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Anonymous Coward, 10 Nov 2015 @ 12:11pm

Why do I suspect even if the bill passes they will break the new law anyway and continue to do what they want regardless of the legality of it.
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