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Detailing Drone Debate Developments in the 1st Circuit States

By William Peacock, Esq. on March 11, 2013 | Last updated on March 21, 2019

As our dear First Circuit court has remained relatively silent for the past week, we thought it might be a good opportunity to discuss an ongoing debate in First Circuit states: the proper limits on drone usage.

As the usage of drones increases, and the acquisition costs decrease (a Maine agency just acquired a $300 drone out of “curiosity”) the potential for a pummeling of privacy rights looms. With telephoto lenses, night-vision, and other photography enhancements, the day where a law enforcement agency can cheaply and easily track and photograph your every move is nearly at hand, and it has many Americans concerned.

The ACLU has a great roundup of pending legislation in over thirty states to limit or prohibit the use of drones. There are a few notable local developments in New Hampshire and Maine that are worth taking a closer look at.

New Hampshire

Though we admire the spirit of the proposed legislation, it does seem to be quite flawed. It's language prohibits the use of aerial or satellite photography where either a human or a man-made structure can be identified. This would seem to ban map and street view services, such as Google's popular tools, and even some forms of sports photography. FOX's "Blimp Cam," which floats behind the quarterback during football games, comes to mind immediately.

At the same time, there are a number of exceptions for government and law enforcement agencies, so long as the agency can provide "articulable suspicion" to support the surveillance. This is far less than many states' proposed requirement of probable cause or a search warrant before using drone photography. 

The verdict: a noble-intentioned yet sloppily drafted piece of legislation that will restrict private users more than over-reaching government agencies.

Maine

Maine is a heck of a lot closer to a reasonable piece of legislation than NH. Though the bill has been temporarily tabled for additional study due to the outright ban on private use of drones, it does have a lot of positives. For one, it is significantly longer and more comprehensive than NH's two paragraph proposal. It also heavily protects against over-reaching by law enforcement agencies.

Though the many provisions are too long and intricate to go into in depth, the short version is this: law enforcement agencies can use drones in life-or-death situations, where a warrant is obtained, or where a court order, similar to one used in wiretap situations, is approved. If the court order, which requires a lesser showing than a warrant, is obtained, it is limited to 48 hours, plus extensions of up to thirty days.

There are also no weaponized drones, facial recognition, or use or retention of "accidentally" gained information. Plus, if a law enforcement agency breaks the rules, there is a built-in private cause of action for statutory damages.

The verdict: This bill is close, but not there. Much like NH's bill, it would ban most (if not all) private use, including map makers and sports and news photography.

To Drone or not to Drone in the First Circuit. Have an opinion? Tweet us all about it.

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