Bill description: HB 376 updates the state's rules governing the use of unmanned aircraft systems (drones).

Rating: +1

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

HB 376 amends Section 21-213, Idaho Code, to specify that the state's prohibition on the use of unmanned aircraft systems to conduct warrantless surveillance applies to local and federal agencies in addition to state agencies. It also adds "commercial or industrial property" to the list of entities protected from such surveillance.

(+1)

Idaho limits the use of unmanned aircraft systems, with some exceptions. HB 376 creates a new list of exceptions, which replaces the old one. Current law says "except for emergency response for safety, search and rescue or controlled substance investigations.  …" HB 376 adds several subsections spelling out the exceptions.

The bill allows exceptions for the following: managing traffic in an event, assessing damage due to a natural disaster, training individuals in the use of unmanned aircraft systems, conducting search and rescue operations, and responding to an emergency "in which there is an imminent threat to the lives or property." It also allows for the unrestricted use of such systems "following the issuance of a warrant."

On balance, removing "controlled substance investigations" from the list of exceptions, which this bill does, should prevent law enforcement from using unmanned aircraft systems to conduct warrantless searches for people who might be growing a marijuana plant in their backyard.

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Unfortunately, the numerous and broad exceptions still leave considerable opportunity for unmanned aircraft system surveillance to be used against individuals. One example is the requirement that a "law enforcement agency shall not issue traffic infraction citations based solely on images or video captured by an unmanned aircraft system." The problem here is that "based solely" leaves room for issuing citations based partially on the images and video captured, without a warrant or consent of the individuals surveilled.

By failing to fully and completely ban the capture, storage, or use of images and video obtained without a warrant, the door is left open for government officials to violate the Fourth Amendment.

An additional problem is the broad language about what may happen when a warrant is issued. It states that "nothing in this section shall be construed to prohibit any law enforcement agency or fire department from using an unmanned aircraft system … following the issuance of a warrant."

The Fourth Amendment requires that a warrant particularly describe the place to be searched and the persons or things to be seized, but this bill's language does not require that unmanned aircraft systems be used within the specific limits laid out in a warrant. Rather, it appears to allow unlimited use to surveil anyone against whom a warrant has been issued. A related concern is that this allowance applies to "any law enforcement agency" following the issuance of a warrant. The use of "any" in this context appears to allow open-ended federal surveillance following the issuance of a state warrant.

(-1)