Gilbert, ACLU propose legislation to regulate unmanned aerial drones

State Del. C. Todd Gilbert (R Woodstock) and the ACLU of Virginia announced Thursday that they are working together on legislation to regulate the use of unmanned aerial drones in the Commonwealth.

“Both the ACLU and I believe, as do many Virginians across the political spectrum, that the use of drones by police and other government agencies should be strictly controlled by state laws that protect the privacy and civil rights of all Virginia residents,” said Gilbert. “I will be introducing legislation in the 2013 General Assembly Session to i) prohibit the use of drones by law enforcement unless a warrant has been issued; ii) require that policies and procedures for the use of drones be adopted by legislative bodies in open meetings; iii) provide for public monitoring and accountability; and iv) mandate that pictures of individuals acquired by drones be destroyed unless they are part of an authorized investigation.”

“Del. Gilbert is right to be concerned about the possibility that, without new laws, this new and increasingly inexpensive technology will be used in a manner that will violate the fundamental right to be free from unreasonable searches and will have a chilling effect on the First Amendment rights of Virginians to assemble peaceably and speak freely,” said Claire Guthrie Gastañaga, executive director of the Virginia ACLU. “We are proud to be working with Delegate Gilbert to build a coalition in favor of the legislation he will introduce – a coalition that will bring together diverse voices from across the Commonwealth,” Gastañaga added.

The legislation Gilbert will introduce will address privacy concerns and the need for public oversight of any use of drones and includes:

* Usage restrictions. Drones should be subject to strict regulation to ensure that their use by government, law enforcement, and private entities does not trample individual privacy rights. For example, legislation should prohibit the use of drones for indiscriminate mass surveillance or for monitoring protected First Amendment activities. In general, legislation should ban all government and government-sponsored use of drones except where:

– there are specific and stated reasons to believe that a drone will collect evidence relating to a specific instance of criminal wrongdoing and where the government has obtained a warrant based on probable cause; or

– there is a geographically confined, time-limited emergency situation in which particular people’s lives are at risk, such as a fire, hostage crisis, or land or water-based search and rescue operation; or

– the drone is used for reasonable non-law enforcement purposes by non-law enforcement agencies, where privacy will not be substantially affected, such as geological inspections or environmental surveys, and where the surveillance will not be used for secondary law enforcement purposes or enforcement of administrative regulations.

* Image retention restrictions. Images of identifiable individuals captured by aerial surveillance technologies should not be retained or shared unless there is reasonable suspicion that the images contain evidence of criminal activity or are relevant to an ongoing investigation or pending criminal trial.

* Public notice. The policies and procedures for the use of aerial surveillance technologies should be explicit, written, and public. While it is legitimate for the police to keep the details of particular investigations confidential, overall policies governing deployment of drones-including the privacy tradeoffs they may entail-are a public matter that should be subject to public oversight and accountability.

* Democratic control. Policy decisions regarding the purchase and deployment of drones should be democratically decided by appropriate legislative bodies (e.g., city councils, county boards, or the General Assembly) based on publicly available information and in open meetings-not made administratively by police departments or other law enforcement or regulatory agencies (e.g., through receipt of federal grants, purchasing decisions, or by inclusion in the general orders of law enforcement agencies).

* Auditing and effectiveness tracking. Public agencies should not invest in drones without a clear, systematic, and public examination of the costs and benefits involved. If aerial surveillance technology is deployed, independent audits should track the use of drones by all government agencies, so that all Virginians can tell generally how and how often they are being used, whether their use is consistent with the original rationale for their deployment and whether they represent a worthwhile public expenditure.