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Statement in Support of “Freedom from Drone Surveillance Act.”
Senate Bill 1587 Engrossed

Gordon Waldron,
Chair of the Civil Liberties Committee, Chicago Council of Lawyers

The Chicago Council of Lawyers supports the “Freedom from Drone Surveillance Act,” Senate Bill 1587 Engrossed. Surveillance by drones can serve useful purposes but because they are small, quiet, highly maneuverable and can be deployed in secret, they are potential threats to privacy. The Bill does a good job of balancing those competing interests.

Summary of Bill

The Bill regulates the use by law enforcement agencies of unmanned aerial vehicles to gather information. The bill requires that such agencies obtain an order to use a drone for surveillance, except in four narrowly defined situations. The warrant must be based on probable cause and limited to a period of 45 days, renewable by a judge upon a showing of good cause. (§ 15(2).)

The four situations when a drone could be used to gather information without a warrant are these:

  1. To counter a high risk of a terrorist attack as determined by the Secretary of Homeland Security. (§ 15(1).)
  2. If a law enforcement agent possesses reasonable suspicion that swift action is needed to prevent imminent harm to life or serious damage to property, or to forestall the imminent escape of a suspect or the destruction of evidence. Drone use is limited to 48 hours in this situation, and within 24 hours of the start of the use, the use must be reported to the local State’s Attorney. (§ 15(3).)
  3. If the law enforcement agency is attempting to locate a missing person, and is not also undertaking a criminal investigation. (§ 15(4).)
  4. If the law enforcement agency is using the drone solely for crime scene and traffic crash photography (but a warrant is required if the drone is used on private property (§ 15(5).)

Section 20 requires that all information gathered by the drone be destroyed within 30 days, except that that “a supervisor” at the law enforcement agency “may retain particular information if 1) there is reasonable suspicion that the information contains evidence of a criminal activity; or 2) the information is relevant to an ongoing investigation or pending criminal trial.” Section 25 prohibits the disclosure of information gathered by the drone except that that “a supervisor” at the law enforcement agency “may disclose particular information to another government agency” if either of the above two alternatives apply.

The bill also requires that agencies that own one or more drones shall annually report the number owned to the Illinois Criminal Justice Information Authority, which shall publish that information on its website. (§35)

Recommendations of the Chicago Council of Lawyers

Although the Chicago Council of Lawyers generally supports the “Freedom from GPS Surveillance Act,” SB 1587 Engrossed, we recommend that the following changes be considered.

  1. Section 20 requires (with two exceptions) the destruction within 30 days of information gathered by the drone. That information may include information that would help to exonerate a person charged with a crime. It is possible, however, that such a person might not know of that information within 30 days. We thus suggest that each law enforcement agency that uses drones be required to set up a procedure that would allow such a person (or that person’s attorney on his behalf) to advise the agency that the person has reason to believe that the drone recorded information about him and to request that such information be preserved even if there is not yet an “ongoing investigation or pending criminal trial.” Any law enforcement agency that uses drones must post on its web site an e-mail address to which such requests may be sent, as well as the name and address of a person to whom a hard copy request may be sent. If the agency states that the information recorded by the drone does not include information about the requesting person, that person shall have 30 days after the agency’s statement to file a suit to resolve the dispute. During the pendency of the suit, the agency shall retain all information recorded by the drone. If no such suit is filed within that 30 day period, the agency may destroy the recorded information.
  2. In sections 20 and 25 the word “may” should be replaced with “shall” in the phrase that a supervisor at a law enforcement agency “may retain particular information” beyond 30 days in two situations, and the phrase that the supervisor “may disclose particular information to another government agency” in those two situations. We recommend such change because the word “may” could be read to mean that the supervisor has unbridled discretion to retain or not retain the information.
  3. We suggest a technical change in the language of Section 15(4). It allows a law enforcement agency to use a drone, without a warrant, to attempt to locate a missing person when it is “not also undertaking a criminal investigation.” But most law enforcement agencies are always conducting criminal investigations of one kind or another. That would mean that an agency would always have to obtain a warrant before attempting to locate a missing person with a drone. This drafting error could be corrected by amending Section 15(4) to refer to “undertaking a criminal investigation in which the missing person is a suspect or target.”

 

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