We were pleased to team up with Representative John Huffman (R-The Dalles) to advocate for the passage of HB 2710, one of our priority bills, to put in place clear guidelines for law enforcement on the use of unmanned aerial vehicles (UAVs)– more commonly known as “drones.”
Drones are designed to reach and fly around airspace without a human pilot onboard. Some drones are remote-controlled by a human on the ground, others purely automated. Many drones can reach great heights so as to elude the human eye and, because of their size and unique maneuverability, redefine what it means for those in possession to engage in surveillance. Undoubtedly, this is an area of technology that is quickly developing and, in our view, there is a great danger to the privacy of Oregonians if the technology is abused.
Congress has directed the Federal Aviation Administration (FAA) to develop policies by 2015 to integrate drones into domestic airspace and, in the meantime, any individual or entity that intends to fly a drone in federal airspace (generally 400 feet above ground, or higher) must obtain a permit to do so from the FAA. The ACLU is aware of a small number of public agencies in Oregon that have applied for a permit but, on the whole, these administrative barriers and the timeline from Congress have presented an opportunity for states to think ahead about what guidelines around usage of drones is appropriate.
HB 2710 proposed a very basic but important concept: ensure that our law enforcement agencies are not using drones for mass surveillance of innocent Oregonians. Collaborating with a long list of stakeholders including the Oregon Department of Justice, the Governor’s office, the Oregon Association of Chiefs of Police, the Oregon Criminal Defense Lawyers Association, the Oregon Department of Aviation, and more, we reached a compromise on the specifics of the bill. Most importantly, the bill prohibits the use of drones by law enforcement except under limited circumstances: pursuant to a warrant based on probable cause including exceptions for exigent circumstances, with consent of the individual be surveilled, for search and rescue or in an emergency including a state of emergency declared by the Governor, to map a crime or accident scene, or for law enforcement training purposes where information collected is used only for training. These provisions ensure that law enforcement will not use drones for indiscriminate, general surveillance.
HB 2710 includes additional provisions, some of which were concessions we made to move the bill forward and not necessarily pieces we would have written or supported on our own initiative. The bill requires that starting in 2016 public bodies using drones register the drone with the Oregon Department of Aviation and report annually to the Department on their use of drones. It also includes a prohibition on use of weaponized drones by public bodies, creation of new crimes of intentional interference with a drone operation, imposes new civil penalties for interference and for trespass using a drone, state preemption of local laws relating to drones, and requirement that the Oregon Department of Aviation report to an interim legislative committee on the status of federal regulation of drones. While we would like to see in the future additional limitations on use of drones by public agencies, including guidelines around destroying surveillance footage collected by drones when it is no longer needed and prohibitions on sharing footage with other agencies or entities, HB 2710 is an important first step in outlining what usage of drones will look like in Oregon.
Rep. Huffman was not the only legislator interested on moving drones legislation this session. Senator Prozanski (D-South Lane and North Douglas Counties) introduced SB 71, which proposed to impose a large set of regulations on individual and private use of drones by Oregonians. Facing strong opposition from hobby groups, drone development industry representatives, and recreational pilots associations, Sen. Prozanski agreed to abandon SB 71 and combine efforts with Rep. Huffman and HB 2710. We too opposed SB 71 because the regulations on law enforcement use of drones were overly permissive to law enforcement, using a standard for privacy protection that was much weaker than even the current case law from the Oregon Supreme Court. A few pieces of SB 71, including the penalties for trespass with a drone, were incorporated into HB 2710, but very little else regulating private use of the new technology or authority for use by law enforcement without probable cause of criminal wrongdoing.
VICTORY! SB 71 died in committee. HB 2710 PASSED
Vote: 56-3-1 (House approval of conference committee report) 24-6 (Senate approval of conference committee report). SCORECARD VOTE