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Viewpoints: Police should get warrants for drones

Gov. Jerry Brown should sign Assembly Bill 1327 to limit the ability of police in California to use drones to spy on people.

The issue of police use of military equipment – which received national attention with the disturbing images of police in Ferguson, Mo. – includes a rapid growth in the use of drones by law enforcement. Indeed, it was recently learned that the police departments in Los Angeles and San Jose had secretly acquired drones.

Drones have the capacity to invade all of our privacy. They can monitor what people are doing at almost any time, including in their homes if their shades are open. Drones tremendously increase the ability to place anyone under surveillance and monitor almost any activities.

AB 1327 would be the first law in California to regulate drones. Specifically, it would require that law enforcement and other government agencies get a warrant before deploying a drone.

The bill would not prohibit all police use of drones for surveillance or to gather evidence. Under AB 1327, the police still could use drones if they demonstrated to a judge that there was “probable cause,” the standard that always must be met for the police to get a warrant.

The requirement that police get a warrant before searching a person or his or her home or vehicle is a crucial check on law enforcement. The Fourth Amendment to the Constitution provides that there generally cannot be searches or arrests without a warrant based on probable cause. This provides an important constraint on police by requiring that they demonstrate good reason for a search to a neutral judge.

It is unclear, though, how the Fourth Amendment applies to drones. The technology is too new for the courts to have ruled. In 1989, the U.S. Supreme Court ruled that the police may use low-flying airplanes to gather information without a warrant. The court said that this was not a “search” within the meaning of the Fourth Amendment. If the court follows this with regard to drones, there would be no constitutional limit on their use.

Rather than wait for the Supreme Court, legislatures must step in. In 1968, Congress passed the Omnibus Crime Control Act to regulate electronic surveillance by police and to require that a warrant be obtained by police before wiretapping occurs. The same is needed for technology like drones. AB 1327 would do that in California and provide a model to other states. In fact, a handful of other states have enacted this kind of common-sense requirement, and California can help tremendously by joining this effort.

Technological developments, like drones, pose a great threat to privacy. The warrant requirement long has been used to balance law enforcement needs and privacy interests. It should be applied to drones, and other emerging technology. We shouldn’t have legal loopholes big enough to fly a drone through in the places where our rights used to be.