June 18, 2018
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Take it slow on Maine drone law

Christopher Cousins | BDN
Christopher Cousins | BDN
Shenna Bellows, executive director of the American Civil Liberties Union of Maine, (left) describes how various models of airborne surveillance drones work on Tuesday, Feb. 26, 2013, at the State House in Augusta. Looking on is Rep. Matthew Moonen, D-Portland.

Drones are coming, and Maine needs to be ready. That’s the premise of LD 236, “An Act to Protect the Privacy of Citizens from Domestic Unmanned Vehicle Use,” a bill sponsored by Sen. John Patrick, D-Rumford.

Following a directive from Congress, the Federal Aviation Administration is working to integrate unmanned aerial vehicles, commonly known as drones, into the national airspace system by September 2015. The FAA estimates that as many as 10,000 drones could be patrolling U.S. skies by 2020.

Given that drones can easily be equipped to function as surveillance vehicles, Patrick’s bill provides a good starting point for a “much-needed conversation about bringing our privacy laws up-to-date and protecting both safety and privacy in Maine,” as he told the Legislature’s Judiciary Committee during a public hearing Tuesday. But as made clear by other testimony at that hearing, creating public policy related to drone use in Maine will be complex and multifaceted.

For that reason, we urge lawmakers to enact a one-year moratorium on the use of unmanned aerial vehicles for surveillance by law enforcement in Maine, as suggested Tuesday by Deputy Assistant Attorney General William Stokes. The moratorium also should prohibit the use of surveillance drones by private citizens.

The one-year moratorium would protect Mainers’ privacy rights from the rush of surveillance technology, while allowing adequate time to explore fully the legal implications of public and private drone surveillance, refine the language in Patrick’s bill to address private use of surveillance drones and craft a comprehensive policy that won’t yield unintended consequences requiring quick-fix legislation later.

Some aspects of integrating drones into Maine airspace should foster quick consensus. Domestic drones used in Maine should not carry weapons. They could be assets to search, rescue and recovery operations and useful tools for first responders assessing an emergency scene. Commercial applications of drone use, such as land surveying, filmmaking, environmental monitoring and scientific research, should be explored for the economic benefits they could yield.

Fourth Amendment prohibitions against unreasonable search and seizure by government entities must extend to the use of surveillance drones by law enforcement agencies in Maine. Patrick’s bill addresses that concern well with strong requirements for warrants or court orders associated with deployment of drones, as well as strict limits on how information collected by them could be used. However, LD 236 doesn’t address the use of surveillance drones by private citizens to spy on others, which is an area of deep concern.

Maine would be wrong to impose limitations on government use of surveillance drones without parallel precautions against their use by individuals or non-government entities to invade the privacy of others. Surveillance drones, which are easily available for purchase online — as the American Civil Liberties Union of Maine demonstrated Tuesday to the Judiciary Committee — could become new tools for stalkers.

A January 2013 Congressional Research Service report notes there is no legal precedent for unmanned aircraft, as previous court decisions on airspace property and privacy rights only related to planes and helicopters. Separate pieces of federal legislation designed to define privacy rights before surveillance drones become more prolific in U.S. skies have been submitted by U.S. Rep. Ed Markey, D-Mass., and U.S. Rep. Ted Poe, R-Texas. The FAA announced Feb. 14 that it would accept public comment on privacy concerns related to six sites it will use to test domestic drone flight.

A one-year moratorium on drone surveillance in Maine would allow state lawmakers to observe how questions about privacy are answered at the federal level, then craft Maine’s law in a way that would not conflict with federal standards. It also would buy time to engage other stakeholders, including Maine Criminal Justice Academy experts, civil libertarians and drone manufacturers, in the process of formulating a state policy.

Questions about using drones to monitor private citizens on public land — or in pursuits on public roads, as Stokes mentioned Tuesday — also require further exploration. Patrick’s bill lays out a good foundation for state policy on drones, but a moratorium would give lawmakers time to make it better.

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