Who gets to write the rules on drones?
That's the question a boisterous standing-room-only crowd — and top representatives for both police and rights organizations — showed up to answer Thursday, at the first public hearing for a bill regulating the use of unmanned surveillance vehicles.
At the heart of the debate was whether the uniqueness of the technology should warrant a unique law. "You know when a cop is flying above you in a helicopter," said ACLU state representative Shankar Narayan. "You don't know when a dragonfly-sized drone is hovering outside your window."
House Bill 1771 would set limits on the purchase and use of drones by public agencies, including police and other enforcement offices. Under the proposal, any agency that wanted to buy a drone would need approval from the state legislature. After purchase, police would need a warrant to use drones — except in emergencies.
Information gathered using drones would be subject to even tighter controls than home searches, and would have to be destroyed within a set amount of time unless police could prove it was part of an investigation.
A boisterous crowd filled the seats and and stood at the back and sides of Thursday's hearing. At multiple points audience members clapped and called out "Thank you," and "That's right," after statements from the front of the room challenging drones. These outbursts earned bangs of the chairman's gavel and calls for order.
Accompanying ACLU representative Narayan was Mike German, a top lawyer for the organization who travelled from Washington D.C. to testify. Drone technology is evolving so quickly, German said, that legislators have to act now to regulate the technology, before it becomes widespread.
Narayan, speaking beside German, agreed. As drones get cheaper, Narayan said to the committee, "the temptation will be to put more and more of them up there."
The bill's sponsor, Rep. David Taylor, R-Yakima, and other supporters repeatedly called the limits set by the bill "sideboards" that would not eliminate drones outright, but would instead make sure they were limited to strictly targeted use.
Mitch Barker, executive director of the Washington State Association of Police Chiefs and Sheriffs, disagreed, arguing forcefully against the bill.
"We're fine with sideboards," Barker said. "But this is four walls and a ceiling."
Instead of trying to pass legislation for individual pieces of technology as they come out, Barker said, the legislature should leave the issue to the courts, who can decide the limits of drone use as challenges arise. Even that might not be necessary, Barker said, since current court rulings already regulate searches by law enforcement and the limits of what police officers can do about crimes or other activities that are in plain view of the outside world.
Noting that the courts had regulated other surveillance technolology as it evolved, including night-vision goggles and telephoto lenses, Barker said, "It's patently absurd to put on those kinds of limits when we don't have them on other kinds of technology."
At least a few members of the committee obviously agreed. Rep. Brad Klippert, R-Kennewick, asked Narayan and German as well as the bill's sponsors what kind of active policing the bill allowed, citing a hypothetical situation of flying above a huge mall parking lot on Christmas, looking for thieves stealing presents from parked cars.
While supporters of the bill generally replied that the action would be allowed if it was in response to a crime in progress, Barker said the scenario highlighted the drawback of the bill — that it would keep the police from using the technology for patrols of public places.
After Barker's response, Klippert invited Barker and others to help draft an amendment — but left out the ACLU.
Contacted after the hearing, German said that those types of patrols are exactly the danger of drones and other increasingly cheap surveilance technology. Constant surveillance becoming the norm is a risk, German said. The knowledge that a person is being watched almost always causes him or her to act differently. Beyond individual privacy, society risks losing the benefits of some things people might not want to be seen doing. German cited examples like attending alcohol or drug treatment meetings, going to a family planning or mental health clinic, or attending a controversial school or church.
The main problem with waiting for the courts to rule on the issue, German said, is that it also means waiting for a victim. By the time one person succeeded in challenging a bad policy set by a county or city, many other cases of the same violation would probably have already occurred, and would be hard to address after the fact.
After the hearing, Barker acknowledged the delay involved in waiting for the courts, but argued that judges have the legal knowledge to tailor their rulings exactly to the situation. That's unlike legislators, who have to try to predict what future conflicts may arise.
Asked whether drones might be used to intrude on people's privacy in the meantime, Barker said, "it's possible."
Whether it's likely, he said, depends on how much people trust the police.
For exclusive coverage of the state Legislature, check out Crosscut's Olympia 2013 page.
